     Case: 14-20183      Document: 00512843929         Page: 1    Date Filed: 11/20/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-20183                                FILED
                                  Summary Calendar                      November 20, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN JOSE RAMIREZ-DAVILA, also known as Juan Jose Ramirez Davila,
also known as Juan Jose Ramirez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:13-CR-584-1


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Juan Jose Ramirez-Davila (Ramirez) appeals from his conviction of
illegal reentry following deportation. He contends that his 45-month sentence
of imprisonment, one month less than the minimum term of the advisory
guideline sentencing range, is procedurally unreasonable because the district
court did not adequately explain its reasons for the sentence in light of his
request for a downward departure based on the age of his prior conviction for


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-20183

transporting aliens, his youth at the time of that offense, his 13-year period
with no convictions, and his continued gainful employment. He argues that
the sentence was substantively unreasonable because the district court failed
to take into account the age of his prior conviction and his youth at the time of
that offense.
       This court reviews sentences for reasonableness by engaging in a
bifurcated review. Gall v. United States, 552 U.S. 38, 49-51 (2007); United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). First, the
appellate court must 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 district court’s sentencing decision is procedurally sound, the
appellate court should then consider the “substantive reasonableness of the
sentence imposed under an abuse-of-discretion standard.” Id.
       District courts are required to state in open court the reasons for
imposing a particular sentence. § 3553(c); United States v. Key, 599 F.3d 469,
474 (5th Cir. 2010). “The district court’s statement of reasons should be fact-
specific and consistent with the sentencing factors enumerated in § 3553(a) . . . .
The court’s justification for a particular sentence must be sufficient to allow
for meaningful appellate review and to promote the perception of fair
sentencing.” Id. (internal citations and quotation marks omitted). Where a
district court “decides simply to apply the Guidelines to a particular case, doing
so will not necessarily require lengthy explanation.” Rita v. United States, 551
U.S. 338, 356 (2007).        “Where the defendant or prosecutor presents
nonfrivolous reasons for imposing a different sentence, however, the judge will

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                                  No. 14-20183

normally go further and explain why he has rejected those arguments.” Id. at
357. This explanation by the district court will “allow for meaningful appellate
review.” Gall, 552 U.S. at 50. This court focuses “on the district court’s
statements in the context of the sentencing proceeding as a whole,” United
States v. Diaz Sanchez, 714 F.3d 289, 294 (5th Cir. 2013), and conducts “a
pragmatic, totality-of-the-circumstances review into whether the district court
evaluated the parties’ sentencing arguments and rooted its sentence in
permissible sentencing factors,” id.
      The district court listened to Ramirez’s arguments, engaged in a
discussion with defense counsel and the Government, and provided reasons for
sentencing Ramirez to 45 months.        Moreover, the district court explicitly
rejected the argument that the guideline sentencing range overstated the
seriousness of Ramirez’s past criminal conduct. Additionally, the district court
explicitly listed as factors Ramirez’s illegal entries and reentry into the United
States, the fact that this was his third conviction, and the lenient sentences he
received for transporting aliens and failing to stop and provide information.
The district court stated “that this sentence addresses the goals of punishment
and the protection of the public and serves as a deterrent to this defendant
reentering the United States.” Just punishment, protection of the public, and
specific deterrence are among the factors listed at § 3553(a). Reviewing the
totality of the circumstances, the district court provided an adequate
explanation of the sentence that addressed the § 3553(a) factors. See Diaz
Sanchez, 714 F.3d at 294.
      “[A] sentence within a properly calculated guideline sentencing range is
presumptively reasonable.” United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006). To the extent that Ramirez’s 45-month sentence represented a one-
month downward departure from the 46-month low end of the guideline range,
the sentence still is entitled to a presumption of correctness. See United States

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                                 No. 14-20183

v. Murray, 648 F.3d 251, 258 (5th Cir. 2011). “The presumption is rebutted
only upon a showing that the sentence does not account for a factor that should
receive significant weight, it gives significant weight to an irrelevant or
improper factor, or it represents a clear error of judgment in balancing
sentencing factors.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009).
      Ramirez’s prior conviction fell within the 15-year period to be included
in his criminal history score, see U.S.S.G. § 4A1.2(e)(1), and his relative youth
at the time of the offense, standing alone, was not a recommended ground for
departure under the Guidelines, see § 5H1.1, p.s. Although the Sentencing
Guidelines are advisory, see United States v. Booker, 543 U.S. 220, 245 (2005),
the district court was required to consider them when formulating Ramirez’s
sentence, see § 3553(a)(4)(A)(i). To the extent Ramirez relies on Roper v.
Simmons, 543 U.S. 551 (2005), that reliance is misplaced.         In Roper, the
Supreme Court invalidated the imposition of the death penalty on defendants
age 18 and younger. Roper, 543 U.S. at 568. Ramirez was not a juvenile when
he committed his prior offense, and Roper does not require that relative youth
be taken into account when a defendant is an adult. See id. at 574. Moreover,
the reasons articulated by the district court explicitly addressed some of the
§ 3553(a) factors. The district court’s weighing of the § 3553(a) factors is
entitled to deference, and Ramirez’s mere disagreement with the court’s
weighing does not establish that the sentence was substantively unreasonable.
See Gall, 552 U.S. at 51. The district court was permitted to use its judgment
in weighing the sentencing factors, and this court may not reweigh them. See
id. at 51-52.
      AFFIRMED.




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