     Case: 14-20672      Document: 00513178659         Page: 1    Date Filed: 09/02/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-20672
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 2, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

DIEGO RAMIREZ-TORRES, also known as Diego Ramirez, also known as
Diego Ramirez Torres,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-700-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Diego Ramirez-Torres appeals his conviction and sentence under 8
U.S.C. § 1326(b)(2) for illegal reentry following an aggravated felony
conviction; the district court sentenced him at the bottom of the guidelines
range to 70 months of imprisonment and then reduced the sentence to 69
months in light of the month that Ramirez-Torres had already spent in
custody. Ramirez-Torres’s challenge to the constitutionality of § 1326(b)(2)

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 14-20672

pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), is “fully foreclosed
from further debate.” United States v. Pineda-Arrellano, 492 F.3d 624, 625
(5th Cir. 2007).
      Because Ramirez-Torres did not raise in the district court his current
challenges to his U.S.S.G. § 2L1.2(b)(1)(A)(ii) enhancement, we review for plain
error. See United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir.
2012). The record contains both the indictment and the judgment pertaining
to Ramirez-Torres’s Texas conviction for burglary of a dwelling with intent to
commit assault, and we therefore reject as factually incorrect his argument
that the district court based the enhancement entirely upon information
contained in his presentence report. See United States v. Conde-Castaneda,
753 F.3d 172, 177 (5th Cir.), cert. denied, 135 S. Ct. 311 (2014). The indictment
and judgment establish that Ramirez-Torres was convicted under Texas Penal
Code § 30.02(a)(1); accordingly, the district court did not commit error, plain
or otherwise, by imposing the § 2L1.2(b)(1)(A)(ii) enhancement. See Conde-
Castaneda, 753 F.3d at 178-79.
      As Ramirez-Torres does not assert, much less show, that the district
court’s denial of a downward departure resulted from its mistaken belief that
it lacked authority to depart, we lack jurisdiction to review that denial. See
United States v. Tuma, 738 F.3d 681, 691 (5th Cir. 2013), cert. denied, 134 S.
Ct. 2875 (2014). The district court declined to grant Ramirez-Torres’s request
for a downward variance after listening to his arguments regarding the
severity of the applicable guidelines range as well as his cultural assimilation,
familial ties, and employment history in the United States. “[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.” United States v. Campos-




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                                 No. 14-20672

Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Our review reveals no abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
      AFFIRMED.




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