                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT            FILED
                      ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                             No. 05-15896                    MAY 8, 2006
                         Non-Argument Calendar             THOMAS K. KAHN
                                                               CLERK
                       ________________________

                   D. C. Docket No. 05-00019-CR-JEC-1

UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee,

                                  versus

FRANCISCO JAVIER RAMIREZ-GUTIERREZ,
a.k.a. Javier Ramirez-Gutierrez,

                                                     Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (May 8, 2006)


Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Francisco Javier Ramirez-Gutierrez (herein “Ramirez”) appeals his 60-

month sentence, arguing that the district court imposed an unreasonable sentence.

For the reasons set forth more fully below, we affirm.

      Ramirez was indicted on one count of illegal re-entry of the United States by

an alien who previously had been deported, in violation of 8 U.S.C. §§ 1326(a) and

(b)(2). Ramirez initially pled not guilty and filed a motion to suppress statements

made to Immigration and Customs Enforcement (ICE) agents. The court

ultimately denied the motion to suppress and Ramirez subsequently entered a

guilty plea in open court without an agreement. Ramirez admitted in open court

that he previously was deported from the United States in 1999 and that he

returned without the permission of the government.

      A presentence investigation report (PSI) set Ramirez’s base offense level at

8, pursuant to U.S.S.G. § 2L1.2. Ramirez was assessed a 16-level enhancement

under § 2L1.2(b)(1)(A) because he previously had been convicted of two violent

felonies, namely a 1994 conviction for cruelty to children involving violence and a

1995 conviction for aggravated assault. Next, Ramirez received a two-level

reduction for acceptance of responsibility under § 3E1.1(a), but the government

indicated that it would not move for an additional one-level reduction under

§ 3E1.1(b). Thus, Ramirez’s total offense level was set at 22. Ramirez was



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assessed six criminal history points, three points each for the cruelty to children

and aggravated assault charges, which placed him in criminal history category III.

With offense level 22, criminal history category III, Ramirez’s recommended

sentencing range was 51 to 63 months’ imprisonment.

       At the sentencing hearing, Ramirez alleged that the cruelty to children

charge that resulted in three criminal history points was based upon false

information and did not actually occur. The district court noted that Ramirez had

pled guilty to the charge and it would not re-litigate the conviction, but agreed to

hear from Ramirez’s daughter. Ramirez’s daughter then testified that Ramirez had

not hit her and that the supposed bruises on her arm were birthmarks. She later

clarified that she had been hit, but she did not know whether it was her mother or

her father that hit her, as she was just a “little girl” at the time. The district court

did not find the testimony credible.

       Next, Ramirez argued that the government’s decision to withhold the

additional one-level reduction for acceptance of responsibility created an

unwarranted sentencing disparity between defendants who received the additional

reduction by pleading guilty pursuant to an agreement and defendants like Ramirez

who did not enter a plea agreement and did not receive the one-level reduction.

The district court questioned Ramirez as to why he did not enter an agreement to



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get the additional reduction. Ramirez responded in part that he was unwilling to

waive his right to an appeal, and argued that the failure to receive the additional

one-level reduction treated similarly situated defendants differently, a factor to

consider under § 3553(a)(6). Ramirez admitted that, under the guidelines, the one-

level reduction was only available if recommended by the government, but still

requested that the court avoid the unwarranted sentencing disparity when imposing

a sentence.1

       The district court stated that Ramirez’s record was bad and that it seemed

that “every time the law enforcement system sees you, you are threatening a

woman or a child or hurting them.” It noted that Ramirez had the right not to enter

an agreement, although it did not “understand the wisdom of that decision.”

Nevertheless, the court stated that, in a post-Booker sentencing regime, it could

give credit for an additional level notwithstanding the government’s decision not to

recommend it, but chose not to do so in this case. The court indicated that it was

“not real clear about the acceptance of responsibility,” did not “think well” of the

fact that Ramirez pled guilty to a charge that he had attempted to undermine by

having his daughter testify, and, while the court would not consider it obstruction

of justice, it was an aggravating factor. Thus, the court adopted the calculations in


       1
        If Ramirez had received the additional one-level reduction, his sentencing range would
have been 46 to 57 months instead of 51 to 63 months.

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the guidelines and found an advisory guidelines range of 51 to 63 months.

      Prior to imposing a sentence, the court found that absent the guidelines, it

would probably have imposed a lengthier sentence because Ramirez was a “violent

man” and the court was concerned that someone would end up dead if he kept

returning to the United States. The court saw the purpose of punishment as

removing Ramirez from society, and then imposed a 60-month sentence that it

believed was “very reasonable.”

      On appeal, Ramirez argues that his sentence is unreasonable because the

district court “refused to consider evidence” from his daughter showing that he

was, in fact, innocent of the charges that led to a conviction for cruelty to children

and further penalized Ramirez by questioning the “wisdom” of not entering a plea

agreement. He further argues that the failure to take into consideration the

unwarranted sentencing disparity between Ramirez and other similarly situated

defendants rendered the sentence unreasonable. The government argues, inter alia,

that we should hold Ramirez’s case in abeyance pending a decision on the

government’s petition for a rehearing of United States v. Martinez, 434 F.3d 1318

(11th Cir. 2006), in which we rejected the government’s argument that we lacked

jurisdiction to review a sentence for unreasonableness.

      Where a defendant challenges his overall sentence, we review for



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unreasonableness. United States v. Winingear, 422 F.3d 1241, 1244 (11th Cir.

2005); United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160

L.Ed.2d 621 (2005) (holding that appellate courts review sentences for

unreasonableness in light of the 18 U.S.C. § 3553(a) sentencing factors).

      As a preliminary matter, the government’s request that we hold Ramirez’s

appeal in abeyance pending a decision on whether to rehear the Martinez decision

is now moot, as this Court denied the government’s petition for an en banc

rehearing on March 6, 2006. Accordingly, we have jurisdiction to review

Ramirez’s sentence for unreasonableness. Martinez, 434 F.3d at 1321-22.

      At the time of Ramirez’s sentencing on October 6, 2005, the Supreme Court

had issued its ruling in Booker rendering the guidelines advisory only, and,

therefore, the district court, while required to consult and properly calculate the

guideline range, was not bound by the recommended range of 51 to 63 months.

See Booker, 543 U.S. at 259-60, 125 S.Ct. at 764-65 (excising the mandatory

application of the guidelines); United States v. Crawford, 407 F.3d 1174, 1178

(11th Cir. 2005) (holding that, although the guidelines are advisory after Booker,

the district court is still bound to consult them and accurately calculate the

sentencing range). We have rejected the notion that a sentence within the

guidelines is per se reasonable, although “the use of the Guidelines remains central



                                           6
to the sentencing process.” United States v. Talley, 431 F.3d 784, 787 (11th Cir.

2005). We have further stated that, “there is a range of reasonable sentences from

which the district court may choose, and when the district court imposes a sentence

within the advisory Guidelines range, we ordinarily will expect that choice to be a

reasonable one.” Id. at 788.

      Turning to the instant case, it is first noted that nothing in the record

suggests that the district court penalized Ramirez for not entering a plea agreement

or for presenting the testimony of his daughter to contest his conviction for cruelty

to children. If anything, the court’s concern with the plea agreement was that

Ramirez might have received the additional one-level reduction by entering an

agreement. In fact, the court found that, post-Booker, it “frequently” would have

granted at least the equivalent of a one-point reduction, even in the absence of the

government’s motion, “for the reasons argued by counsel.” However, the court

refused to use its discretion to grant Ramirez the equivalent of a one-level

reduction because it was “not real clear about the acceptance of responsibility,”

especially in light of the fact that Ramirez had attempted to contest one of his prior

convictions for cruelty to children. Nothing in the record indicates that the court,

in any way, refused to grant the additional level or its equivalency because

Ramirez failed to enter a plea agreement.



                                            7
      As to the testimony regarding the cruelty to children conviction, the court

made clear that it was not going to relitigate the conviction, and it found Ramirez’s

daughter to be an uncredible witness. Nothing suggests, however, that Ramirez

was in any way penalized, as the court declined to find that Ramirez had attempted

to obstruct justice. Instead, the court adopted the PSI’s factual findings guideline

calculations, including the contested conviction (to which Ramirez had admittedly

pled guilty), which recommended a sentencing range of 51 to 63 months. Based on

the court’s view that Ramirez was “a violent man” who had a history of threatening

or hurting women or children, the court imposed a 60-month (5-year) sentence,

well within the range contemplated by the guidelines and based on a specifically

enumerated sentencing factor. See 18 U.S.C. § 3553(a)(1)-(2)(B)-(C) (providing

that district courts should consider the history and characteristics of the defendant

and the need of the sentence to afford adequate deterrence to criminal conduct and

to protect the public from further crimes of the defendant). In fact, in the absence

of the guidelines, the record indicates that the district court would have imposed a

higher sentence.

      Furthermore, the statutory maximum sentence in this case was 20 years’

imprisonment, and the district court was bound only by the ceiling imposed by

statute. 8 U.S.C. § 1326(b)(2); United States v. Duncan, 400 F.3d 1297, 1308



                                           8
(11th Cir. 2005) (recognizing that the statutory maximum sentence, not the

guideline sentence, is the maximum sentence permitted by law). A five-year

sentence was one fourth of the maximum sentence allowable by law, and it cannot

be said that Ramirez’s sentence was unreasonable. See, e.g., Winingear, 422 F.3d

at 1246 (affirming the defendant’s sentence as reasonable where it was one-tenth of

the statutory maximum sentence).

      We, therefore, conclude that nothing in the record suggests that Ramirez was

penalized by the district court for not entering a plea agreement or for contesting

his conviction for cruelty to children, and the district court’s sentence of 60

months’ imprisonment was not unreasonable.

      AFFIRMED.




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