     Case: 10-10244     Document: 00511240944          Page: 1    Date Filed: 09/22/2010




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

                                                 FILED
                                                                         September 22, 2010
                                     No. 10-10244
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

TOMAS RAMIREZ-HERNANDEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 5:09-CR-72-1


Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Tomas Ramirez-Hernandez appeals the sentence imposed in March 2010
following his guilty plea conviction for illegal reentry following deportation in
violation of 8 U.S.C. § 1326. He argues that the 70-month sentence imposed
(followed by three years’ supervised release), an upward variance from the
recommended guidelines range of 10 to 16 months, is substantively
unreasonable. Where the appellant has preserved error, sentences, whether
inside or outside the advisory guidelines range, are reviewed under an abuse of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10244    Document: 00511240944 Page: 2        Date Filed: 09/22/2010
                                 No. 10-10244

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). While it may
be questionable whether Ramirez-Hernandez properly preserved error on the
specific objections raised on appeal, assuming arguendo that his umbrella
objection to the sentence’s asserted substantive unreasonableness was sufficient
to preserve error, we apply the abuse of discretion standard.
      Ramirez-Hernandez argues that the district court failed to consider that
his early criminal history was related to his drug addiction and that he had a
“change in lifestyle” since contracting HIV and overcoming his drug addiction.
He states that he has not committed a crime other than illegal reentry since
1994. He notes that although he has six prior deportations, three of those
resulted from illegal reentry convictions that were already counted by the
presentence report. He also notes that five of the six deportations took place
before 1995 and that he has only reentered the country twice since 1995, most
recently in June 2008.
      While using the Sentencing Guidelines range as “the starting point and
initial benchmark” for sentencing, the district court has the discretion to select
a non-Guideline sentence after considering the sentencing factors set out in 18
U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 51 (2007). In selecting a
non-Guideline sentence, the district court may, in its discretion, give additional
weight to factors already included in calculating the advisory Guidelines range,
“since to do otherwise would essentially render the Guidelines mandatory.”
United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). On review for
abuse of discretion, “[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 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).
The district court’s oral and written reasons reflect that the court considered the
Guidelines and the 18 U.S.C. § 3553(a) factors, including the nature and

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                                 No. 10-10244

circumstances of the offense of conviction, Ramirez-Hernandez’s history and
characteristics, the need to promote respect for the law, the need for the
sentence to provide adequate deterrence, and the need to protect the public from
further criminal conduct. While Ramirez-Hernandez argues that his criminal
history was given improper weight in light of his lifestyle changes since
contracting HIV, it is clear that even within the “criminal history” factor, the
district court was also concerned by Ramirez-Hernandez’s multiple convictions
for illegal entry, which continued despite his lifestyle change. Furthermore, the
district court relied heavily on the factors of providing deterrence and promoting
respect for the law in reaching its sentence determination, particularly
emphasizing the fact that Ramirez-Hernandez’s prior (September 1999) 70-
month sentence for illegal reentry did not deter him from again illegally
reentering the country.
      While the 70-month sentence is significantly greater than the advisory
Guidelines range of 10-16 months in this case, a mathematical calculation of
percentage deviation does not dictate the substantive reasonableness of a
sentence. United States v. Key, 599 F.3d 469, 476 n.1 (5th Cir. 2010) Instead,
the sentencing court “must consider the extent of the deviation and ensure that
the justification is sufficiently compelling to support the degree of the variance.”
Gall, 552 U.S. at 50. The extent of the variance in this case is sufficiently
supported in the record, particularly in light of Ramirez-Hernandez’s prior 70-
month sentence for illegal reentry.
      In sum, the district court did not abuse its discretion. The sentence
imposed “was reasonable under the totality of the relevant statutory factors.”
United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); see also United
States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008).             Ramirez-
Hernandez’s sentence is
                                   AFFIRMED.



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