     Case: 15-50457      Document: 00513641312         Page: 1    Date Filed: 08/17/2016




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


                                    No. 15-50457                                FILED
                                  Summary Calendar                        August 17, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE SANTOS GRACIANO RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:14-CR-310-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Jose Santos Graciano Ramirez appeals the 15-month sentence imposed
for his conviction of being found in the United States without permission,
following removal. He contends that his sentence is greater than necessary to
achieve the sentencing goals of 18 U.S.C. § 3553(a) because U.S.S.G. § 2L1.2,
the Guideline applicable in his case, overstates the seriousness of what




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50457       Document: 00513641312         Page: 2     Date Filed: 08/17/2016


                                       No.15-50457

essentially is a non-violent international trespass and double counts prior
convictions in the offense level and criminal history calculation. 1
       Ramirez did not object to the reasonableness of his sentence in the
district court. He contends that an objection was not required to preserve his
arguments for appeal. However, his argument is foreclosed. See United States
v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). We will review the sentence
for plain error only. Id. To show plain error, Ramirez must show a forfeited
error that is clear or obvious and that affects his substantial rights. 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 only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
       Ramirez’s sentence fell within his advisory sentencing guidelines range
and is entitled to a presumption of reasonableness.                 See United States v.
Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Ramirez argues that
his sentence should not be accorded a presumption of reasonableness because
§ 2L1.2, is not derived from empirical data.                However, his argument is
foreclosed. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir. 2009);
United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir. 2009).
       This court has rejected Ramirez’s arguments that § 2L1.2 renders a
sentence unreasonable due to double counting or overstating the seriousness
of the illegal reentry offense. See Duarte, 569 F.3d at 529-31; United States v.


       1 At the time Ramirez was sentenced for the instant offense, the district court revoked
a term of supervised release Ramirez was serving for a prior offense. It sentenced Ramirez
to a six-month term of imprisonment, which it ordered to run consecutively to the sentence
for the instant offense. In his brief, Ramirez argues that the district court failed to state
adequately its reasons for imposing a consecutive revocation sentence. He also contends that
the concurrent revocation sentence, when combined with the sentence for the illegal reentry
offense, was greater than necessary to achieve the sentencing goals of § 3553(a). Those
arguments are not properly before this court because Ramirez’s appeal from his revocation
sentence was dismissed for want of prosecution. United States v. Ramirez, No. 15-50495 (5th
Cir. June 8, 2015).


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                                   No.15-50457

Juarez-Duarte, 513 F.3d 204, 212 (5th Cir. 2008). At sentencing, the district
court considered the relevant § 3553(a) factors, the advisory sentencing
guidelines, the facts of Ramirez’s case, and Ramirez’s mitigating arguments.
It determined that a sentence within the advisory guidelines range was
sufficient to achieve the sentencing goals of § 3553(a). Ramirez’s disagreement
with the propriety of his sentence and the court’s weighing of the § 3553(a)
factors is insufficient to rebut the presumption of reasonableness that attaches
to his sentence. See United States v. Koss, 812 F.3d 460, 472 (5th Cir. 2016);
United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). Accordingly, Ramirez
has not established plain error.
      The judgment of the district court is AFFIRMED.




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