     Case: 11-20504     Document: 00511826636         Page: 1     Date Filed: 04/18/2012




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

                                                                            FILED
                                                                           April 18, 2012
                                     No. 11-20504
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE GUADALUPE RAMIREZ GASCA, also known as Jose Guadalupe
Ramirez, also known as Jose Ramirez, also known as Jose Ramiez-Gasca, also
known as Jose Gonzalez Ramirez, also known as Jose Martinez, also known as
Jose Guadalupe Ramirez Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-67-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Jose Guadalupe Ramirez Gasca appeals from the sentence imposed
following his guilty plea conviction for illegal reentry of a previously deported
alien following a conviction for a felony offense. He argues that the district court
erred by imposing an upward departure, failing to provide adequate reasons
supporting that departure, denying his request for a downward variance or

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20504   Document: 00511826636      Page: 2   Date Filed: 04/18/2012

                                  No. 11-20504

departure, and failing to provide him with any notice that the court was
considering an upward departure. In the Statement of Reasons, the district
court clarified that the imposed sentence was outside the advisory Guidelines
system and was therefore a variance. See United States v. Jacobs, 635 F.3d 778,
780 n.1 (5th Cir. 2011). To the extent that the parties’ arguments assume that
the sentence was based upon an upward departure, those arguments are not
applicable and are construed as referencing the upward variance, where
possible. Because the sentence was based upon an upward variance, Ramirez’s
challenge to the absence of notice lacks merit. See Irizarry v. United States, 553
U.S. 708, 716 (2008).
      Sentences are reviewed for reasonableness in light of the sentencing
factors in 18 U.S.C. § 3553(a). United States v. Mondragon-Santiago, 564 F.3d
357, 360 (5th Cir. 2009). Ramirez requested a downward variance prior to
sentencing, but he did not object to his sentence on any ground in district court.
Nevertheless, his sentence may be affirmed regardless of whether he preserved
his challenge to the reasonableness of his sentence. See United States v.
Argueta-Lopez, 326 F. App’x 265, 266 (5th Cir. 2009). Although Ramirez’s
criminal history was accounted for in the guidelines sentence range, the district
court was allowed to consider his prior criminal conduct, including uncounted
prior convictions, as a basis for an upward variance. See United States v.
Brantley, 537 F.3d 347, 350 (5th Cir. 2008). The district court made the required
individualized assessment and was free to conclude that, in Ramirez’s case, the
guidelines range gave insufficient weight to some of the § 3553(a) factors,
including the nature and circumstances of the offense, Ramirez’s history and
characteristics, and the need to protect the public from further crimes.
See United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). Ramirez has
not shown that the district court erred by denying his request for a downward
variance or departure based upon his daughter’s illness. The imposed sentence,
which was six months greater than the highest sentence that could have been

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                              No. 11-20504

imposed under Ramirez’s advisory guidelines range, was not substantively
unreasonable.
     The district court’s judgment is AFFIRMED.




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