     Case: 15-50999       Document: 00513600688         Page: 1     Date Filed: 07/20/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                     No. 15-50999                                 FILED
                                   Summary Calendar                           July 20, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

EVARISTO RAMOS-GUTIERREZ,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                         for the Western District of Texas
                             USDC No. 2:14-CR-1575-1


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       In challenging the 36-month above-Guidelines sentence imposed
following his guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326, Evaristo Ramos-Gutierrez asserts his sentence is
greater than necessary to satisfy the sentencing goals of 18 U.S.C. § 3553(a).
In that regard, he contends: the upward variance was improperly based on his
prior convictions, which were stale and already accounted for in the advisory


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-50999

Guidelines sentencing range of 24 to 30 months; Guideline § 2L1.2 was
improperly applied because it is not empirically based; and the district court,
in imposing the sentence, did not consider mitigating factors, such as the
nonviolent nature of his prior offense and reason for reentering.
      As Ramos concedes, he did not raise these issues in district court; review
is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th
Cir. 2012).   (He acknowledges fifth circuit precedent compels plain-error
review, but wishes to preserve the issue for possible review by the Supreme
Court.) Under the plain-error standard, Ramos must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”.             Id.
Additionally, in reviewing a non-Guidelines sentence for substantive
reasonableness, we “consider the totality of the circumstances, including the
extent of any variance from the Guidelines range, to determine whether, as a
matter of substance, the sentencing factors in section 3553(a) support the
sentence”. United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012)
(internal quotation marks and citation omitted).
      The contentions regarding double counting prior convictions and the
unempirical nature of § 2L1.2 have been consistently rejected. E.g., United
States v. Duarte, 569 F.3d 528, 529–30 (5th Cir. 2009); United States v.
Mondragon-Santiago, 564 F.3d 357, 366–67 (5th Cir. 2009). Moreover, that
his convictions were over 15 years old “does not render a sentence
substantively unreasonable”, much less plainly erroneous. See United States
v. Rodriguez, 660 F.3d 231, 234 (5th Cir. 2011). Additionally, this court has
rejected the assertion an illegal reentry is a mere international trespass, a



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                                 No. 15-50999

nonviolent offense. United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
      When imposing Ramos’ sentence, the court considered the mitigating
factors, such as his contention he returned to the United States to care for his
ailing wife. Nevertheless, the court’s consideration of the § 3553(a) factors and
sentencing decision are given “due deference”. Gerezano-Rosales, 692 F.3d at
400–01. Here, the court provided specific reasons consistent with the § 3553(a)
factors, including Ramos’ prior illegal reentry and uncounted convictions, to
support its determination a sentence above the Guidelines range was
necessary to achieve the goals of sentencing.       Under the totality of the
circumstances, Ramos fails to show the court plainly erred in imposing the
sentence. See Puckett, 556 U.S. at 135.
      AFFIRMED.




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