Case: 12-50068     Document: 00512038514         Page: 1     Date Filed: 10/31/2012




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

                                                                            FILED
                                                                         October 31, 2012
                                     No. 12-50068
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE FELIX RAMIREZ-ALBINO, also known as Felix Albino, also known as
Jose Albino,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:11-CR-627-1


Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
        Jose Felix Ramirez-Albino pled guilty to illegal reentry after deportation
and was sentenced, inter alia, to 24-months imprisonment. He contends: his
sentence is substantively unreasonable because it is greater than necessary to
accomplish the sentencing goals of 18 U.S.C. § 3553(a); and the illegal reentry
Sentencing Guideline, § 2L1.2, gives too much weight to prior criminal history,
overstates the serious of the illegal reentry offense (which Ramirez characterizes


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50068

as only an international trespass), fails to account for personal history and
circumstances, and lacks an empirical basis.
         Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 

, 48-51 (2007). Ramirez
does not claim procedural error. A discretionary sentence imposed, as here,
within a properly-calculated Guidelines sentencing range is presumptively
reasonable. United States v. Rodriguez, 

, 234 (5th Cir. 2011).
         Because Ramirez failed in district court to challenge the reasonableness
of his sentence, he acknowledges that, under our precedent, review is only for
plain error. United States v. Peltier, 

, 391-92 (5th Cir. 2007).
(Notwithstanding his failure to object in district court, and contrary to that
precedent, Ramirez asserts abuse-of-discretion review is proper, but only to
preserve the issue for possible further review.) Among the factors necessary for
reversible plain error, Ramirez must show a clear or obvious error. He fails to
do so.
         The district court imposed a sentence at the bottom of the advisory
Guidelines sentencing range. Along that line, “the sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant”. United States v. Campos-Maldonado, 

, 339 (5th Cir. 2008). Ramirez’ contentions concerning the weight given
his prior criminal convictions, family history, and motivation for reentry fail to
rebut the presumption of reasonableness accorded to within-Guidelines
sentences. E.g., United States v. Gomez-Herrera, 

, 565-66 (5th Cir.
2008); United States v. Ruiz, 

, 398 (5th Cir. 2010).
         Finally, he concedes his empirical-data contention is foreclosed by
precedent, United States v. Duarte, 

, 529-31 (5th Cir. 2009), and

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                                  No. 12-50068

makes this contention only to preserve it for possible further review. His
assertion that his illegal reentry is nothing more than an international trespass
is likewise foreclosed. E.g., United States v. Aguirre-Villa, 

, 683 (5th
Cir. 2006).
      AFFIRMED.




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