Case: 14-14696   Date Filed: 06/08/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14696
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 1:14-cr-00093-ODE-JSA-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

GERARDO RAMIREZ-ALVARADO,
a.k.a. Cesar Orlando Alvarado,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 8, 2015)

Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
Judges.

PER CURIAM:
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      In 2014, officers from the Douglasville, Georgia police department arrested

Gerardo Ramirez-Alvarado on charges of shoplifting. A few days later, an

Immigration and Customs Enforcement officer interviewed him. During the

interview, he admitted that he had illegally entered the United States for the fourth

time in 2012.

      Ramirez-Alvarado later pleaded guilty to one count of illegal reentry by an

aggravated felon, in violation of 8 U.S.C. § 1326(a) & (b)(2). In sentencing him

for that crime, the district court calculated his advisory guidelines range as 77 to 96

months imprisonment. It then varied downward and imposed a 72-month sentence.

      Ramirez-Alvarado contends that his downward variance sentence was

substantively unreasonable — that the court did not go low enough. The thrust of

his argument is that he should have gotten some credit for freely admitting his date

of reentry to ICE officials. But for his honesty, Ramirez-Alvarado argues, he

might have been found to have “commenced” his illegal reentry offense in 2014,

his “encounter” date of reentry, as opposed to 2012, his actual date of reentry. If

that were the case, his advisory guidelines range would have been significantly

lower — 37 to 46 months instead of 77 to 96 months — because two of his prior

convictions would not have received criminal history points, and he would have

received only a 12-level, as opposed to a 16-level, enhancement under United

States Sentencing Guidelines § 2L1.2(b)(1)(A). See U.S.S.G. § 4A1.2(e)


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(explaining that certain prior convictions are not scored if the resulting sentence

was imposed too many years before the defendant “commenced” his instant

offense of conviction); 

(providing that, if a defendant

previously was deported after having been convicted of a felony that is a “crime of

violence,” he receives a 16-level enhancement if the conviction was scored and a

12-level enhancement if it was not); United States v. Castrillon-Gonzalez, 

, 406 (11th Cir. 1996) (holding that, for purposes of calculating a defendant’s

criminal history score, “the commencement of the crime of being ‘found in’ the

United States [under 8 U.S.C. § 1326] is at the point of entry”). He also argues

that the district court failed to consider that the low end of his advisory guidelines

range (77 months) was much higher than the 24-month sentence that he had

received for a previous illegal reentry conviction, and that his personal history and

characteristics merited a shorter sentence.

      We review the substantive reasonableness of a sentence under an abuse of

discretion standard. Gall v. United States, 

, 51, 

, 597

(2007). Under that deferential standard, we will vacate a sentence “only if[] we are

left with the definite and firm conviction that the district court committed a clear

error of judgment in weighing the [18 U.S.C. § 3553(a)] factors by arriving at a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” United States v. Irey, 

, 1190 (11th Cir. 2010) (en banc)


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(quotation marks omitted). The party challenging a sentence has the burden of

showing that the sentence is unreasonable in light of the entire record, the

§ 3553(a) factors, and the substantial deference afforded sentencing courts. United

States v. Langston, 

, 1236 (11th Cir. 2009).

       Ramirez-Alvarado’s 72-month sentence is substantively reasonable. For

starters, it is a below-guidelines sentence. Because we ordinarily expect within-

guidelines sentences to be reasonable, see United States v. Asante, 

,

648 (11th Cir. 2015), that fact alone is a strong indicator of the sentence’s

reasonableness. Equally to the point, the sentence was not the product of a clear

error in judgment. The district court considered the advisory guidelines range,

treated it as advisory, and varied downward based on the fact that “old”

convictions “trigger[ed] a very large adjustment in the calculation of the guideline

range.”1 It did not vary downward as much as Ramirez-Alvarado would have

liked, however, because it determined that a shorter sentence (such as the 24-

month sentence that he previously received for the same crime) would not

adequately deter him from illegally entering the country a fifth time. The court

also determined that a shorter sentence would not adequately account for the fact

that he had committed multiple crimes each time he had entered the United States,


       1
        In a way, then, the district court did give Ramirez-Alvarado credit for being honest with
ICE. Of course, his real reward was not receiving an obstruction of justice enhancement. See
U.S.S.G. § 3C1.1.
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including burglaries of private residences, burglary of a motor vehicle, multiple

thefts, driving without a license, and driving under the influence. Ramirez-

Alvarado has failed to meet his burden of showing that his downward variance

sentence is unreasonably long in light of the § 3553(a) factors and the facts of his

case.

        AFFIRMED.




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