     Case: 11-10876     Document: 00511882866         Page: 1     Date Filed: 06/11/2012




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

                                                                            FILED
                                                                           June 11, 2012
                                     No. 11-10876
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RUBEN RAMIREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-53-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Ruben Ramirez appeals from his conviction of making a false statement
during the acquisition of a firearm and aiding and abetting. He contends that
the district court failed to provide adequate reasons for varying from the 46-57
month guidelines sentencing range to the statutory maximum sentence of 120
months of imprisonment. He suggests that his sentence may actually have
represented an upward departure based on his criminal history score
underrepresenting the seriousness of his criminal history and on his knowledge

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-10876    Document: 00511882866       Page: 2    Date Filed: 06/11/2012

                                   No. 11-10876

that the firearms he procured through the use of “straw buyers” were destined
for a Mexican drug cartel. He next contends that the sentence imposed was
substantively unreasonable because the reasons articulated by the district court
do not support the 120-month sentence.
      We review sentences for reasonableness by engaging in a bifurcated
review. See Gall v. United States, 552 U.S. 38, 51 (2007); United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, we ensure that the
sentencing court committed no significant procedural error, such as “failing to
calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence–including an explanation for any deviation from the
Guidelines range.”     Gall, 552 U.S. at 51.        If the sentencing decision is
procedurally sound, we then consider the “substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.
      Ramirez did not object at the sentencing hearing to the district court’s
alleged failure to articulate adequate reasons for the sentence. His contention
that his sentence is procedurally unreasonable is reviewed for plain error.
See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To
establish plain error, Ramirez must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but will do so only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. See id.
      A sentence need not be explained by “a full opinion in every case.” Rita v.
United States, 551 U.S. 338, 356 (2007). “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision making
authority.” Id. When the record and the context show that the sentencing court

                                          2
   Case: 11-10876   Document: 00511882866      Page: 3   Date Filed: 06/11/2012

                                  No. 11-10876

considered the evidence and the arguments and based the sentence on the facts
and arguments, more extensive reasons are not required. Id. at 357-58. “[T]he
adequacy of a district court’s articulation of its reasons for imposing a sentence
must be judged in light of the proceeding as a whole, including the facts revealed
in the [presentence report].” United States v. Rhine, 637 F.3d 525, 529 (5th Cir.
2011), cert. denied, 132 S. Ct. 1001 (2012).
      Although the district court did not check the variance box on the
statement of reasons, it did check boxes indicating that the sentence was above
the advisory guidelines range and that it was imposed pursuant to “[o]ther than
a plea agreement or motion by the parties for a sentence outside of the guideline
system.” The district court indicated that the reasons for the sentence were the
nature and circumstances of the offense and the history and characteristics of
the defendant; the need to reflect the seriousness of the offense, promote respect
for the law, and provide just punishment; the need to provide adequate
deterrence; and the need to protect the public from Ramirez’s future crimes. At
the sentencing hearing, the district court stated that the 120-month sentence
was appropriate taking into consideration the factors set out in § 3553(a), and
it discussed the factors relevant to the sentencing decision.
      A sentencing court may impose a sentence that is (1) within a properly
calculated guidelines range, (2) an upward or downward departure from the
advisory range “as allowed by the Guidelines,” or (3) a non-guidelines sentence,
or variance, that accomplishes the purposes of § 3553(a). See United States v.
Brantley, 537 F.3d 347, 349 (5th Cir. 2008). The discussion of § 3553(a) factors
at sentencing and the indication on the statement of reasons that those factors
were relevant to a non-guidelines sentencing decision lead us to conclude that
Ramirez’s sentence resulted from a variance and not a departure. See Rhine,
637 F.3d at 528.
      Among the factors to be considered at sentencing are “the nature and
circumstances of the offense and the history and characteristics of the

                                        3
   Case: 11-10876    Document: 00511882866      Page: 4    Date Filed: 06/11/2012

                                  No. 11-10876

defendant,” § 3553(a)(1), and “the need for the sentence imposed” to, inter alia,
“reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense.” § 3553(a)(2)(A). Additionally, the need
to deter future criminal conduct and to protect the public from future crimes also
are sentencing factors under § 3553(a).       § 3553(a)(2)(B)-(C).    The reasons
articulated for the variance in Ramirez’s case are consistent with these § 3553(a)
factors.
      First, the district court addressed the nature and seriousness of the offense
by commenting that Ramirez knew that the firearms he purchased were
destined for a drug cartel that would use them to kill people. Second, Ramirez’s
personal characteristics and disregard for the law were demonstrated by the use
of a false name when he was arrested, and by his 14 removals and, evidently, 15
reentries. Third, the probation officer opined that a departure or variance might
be appropriate due to Ramirez’s pattern of illegal entries, in order to deter future
criminal conduct and to protect the public. The district court explained that the
120-month sentence would be an appropriate punishment in light of these
factors. The record in this case shows that the district court provided adequate
reasons for the variance and the sentence imposed.              Ramirez has not
demonstrated error, plain or otherwise. See Rhine, 637 F.3d at 529.
      At sentencing, Ramirez objected to the substantive reasonableness of his
sentence, preserving that issue for appeal.        “In reviewing a sentence for
substantive unreasonableness, ‘the court should consider the totality of the
circumstances, including the extent of any variance from the guidelines range.’”
Rhine, 637 F.3d at 529 (quoting Brantley, 537 F.3d at 349). We give deference
to the district court’s sentencing determinations, and will not reverse the district
court “just because we would have determined that an alternative sentence was
appropriate.”    Brantley, 537 F.3d at 349.          “A non-Guideline sentence
unreasonably fails to reflect the statutory sentencing factors where it (1) does
not account for a factor that should have received significant weight, (2) gives

                                         4
   Case: 11-10876    Document: 00511882866      Page: 5   Date Filed: 06/11/2012

                                  No. 11-10876

significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.” United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006).
      Here, Ramirez and his “straw buyers” purchased 13 rifles, knowing that
those rifles would be sent to a Mexican drug cartel. Moreover, Ramirez had been
removed from the United States on 14 occasions, yet he was never punished for
any illegal reentries into the country. It was reasonable for the district court to
conclude that a long period of incarceration was necessary to encourage Ramirez
to respect the laws of the United States; to deter him from reentering the
country following his removal after his release from prison; to deter him from
furnishing a Mexican drug cartel with firearms; to protect residents of the
United States from possible criminal conduct in the future; and to protect
residents of Mexico from being killed with rifles sent to the cartel by Ramirez.
      It is irrelevant that some of these factors were taken into account when
calculating Ramirez’s offense level; a district court may consider factors already
incorporated into guidelines sentencing calculations to support a non-guidelines
sentence. See Brantley, 537 F.3d at 350; cf. United States v. Gutierrez, 635 F.3d
148, 152 (5th Cir. 2011) (rejecting argument that appropriate departures under
the Guidelines be calculated before a district court may impose a non-guidelines
sentence). Moreover, the record does not indicate that the district court failed
to account for a factor that should have been given weight, that it gave weight
to any improper factors, or that the sentence represented a clear error in
judgment. See Smith, 440 F.3d at 708 The district court’s sentence was
reasonable under the abuse of discretion standard. See Gall, 552 U.S. at 51.
      AFFIRMED.




                                        5
