NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 11-2491




                           UNITED STATES OF AMERICA

                                            v.

                              JUAN MENDEZ-RAMIREZ,
                                          Appellant




                    On Appeal from the United States District Court
                              for the District of New Jersey
                               (D.C. No. 3-10-cr-0592-001)
                     District Judge: Honorable Anne E. Thompson
                                       __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 on February 7, 2012

         Before: SLOVITER and VANASKIE, Circuit Judges, and PADOVA,
                             Senior District Judge *

                               (Filed: February 14, 2012 )

                                       __________

                           OPINION OF THE COURT
                                 __________
PADOVA, Senior District Judge.


  *
    The Honorable John R. Padova, Senior District Judge of the United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
       Appellant Juan Mendez-Ramirez challenges both the procedural and substantive

reasonableness of his 48-month sentence after pleading guilty to one count of reentry after

deportation in violation of 8 U.S.C. § 1326(a) & (b)(2). We will affirm.

                                              I.

       As we write primarily for the parties, who are familiar with the factual context and

legal history of this case, we will set forth only select background facts. Mendez-Ramirez

was born in Guatemala in 1959 and first came to the United States in 1989. Mendez-Ramirez

was convicted of driving while intoxicated in 1990 and was twice convicted of transport or

distributing narcotics in 1991. He was deported for the first time on October 21, 1991.

Mendez-Ramirez returned to the United States and was convicted of distribution of narcotics

in 1994. He was deported from the United States on three additional occasions after his 1994

conviction: April 20, 1995, April 9, 1997 and July 24, 2008. He illegally returned to the

United States again later in 2008. Mendez-Ramirez was homeless at times after his 2008

return to the United States and frequently stayed at the New Jersey Rescue Mission in

Trenton, New Jersey.

       Mendez-Ramirez was arrested three times in Trenton between February 28 and July

4, 2010. On February 28, 2010, he was arrested for defiant trespassing and begging or

panhandling around the Trenton Transit Center. On April 8, 2010, he was arrested for

resisting arrest, aggravated assault, unlawful possession of a weapon and assault on police.

On July 4, 2010, he was arrested for receiving stolen property, resisting arrest and burglary.



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On July 10, 2010, while Mendez-Ramirez was being held at the Mercer County Jail in

Trenton, New Jersey following his July 4 arrest, Immigration and Customs Enforcement

agents discovered that he was in the United States illegally after having been previously

deported to Guatemala. On September 9, 2010, Mendez-Ramirez was charged in a federal

indictment with one count of entering the United States after having been removed

subsequent to the commission of an aggravated felony in violation of 8 U.S.C. § 1326(a) &

(b)(2). He pled guilty to that charge on February 14, 2011.

       The District Court sentenced Mendez-Ramirez on May 24, 2011. Prior to the

sentencing, defense counsel sent the District Court a lengthy sentencing letter. Defense

counsel did not contest the Probation Officer’s calculation of Mendez-Ramirez’s total

offense level of 21, his criminal history category of III, or the advisory Guidelines sentencing

range of 46-57 months. Defense counsel also did not file a motion for departure from that

sentencing range. Defense counsel did, however, ask the District Court to vary downward

from the advisory Guidelines sentencing range on the grounds that the Guideline for reentry

after deportation, U.S.S.G. § 2L1.2, is devoid of rational, reliable, empirical, historical basis

and, as a result, overstates the seriousness of the offense and results in sentencing ranges that

are disproportionate to the offense.1 Defense counsel also argued that, since Mendez-



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   Defense counsel specifically challenged the special offense characteristic contained in
U.S.S.G. § 2L1.2(b)(1)(A), which increases a defendant’s base offense level for reentry after
deportation by 16 levels if the defendant reentered the United States after having been
convicted of a drug trafficking offense for which he received a sentence of more than 13
months of imprisonment. U.S.S.G. § 2L1.2(b)(1)(A)(i).

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Ramirez would qualify for fast-track disposition in a fast-track district, the District Court

should vary downward from the advisory Guidelines range to account for the sentencing

disparity between fast-track and non-fast-track districts.2 Defense counsel repeated these

arguments at length during the sentencing hearing and asked the District Court to impose a

24-month sentence. The District Court rejected defense counsel’s argument and found that

Mendez-Ramirez’s Guideline range was fair, based on how many times he returned to the

United States after being deported and his history of criminal activity. The District Court

sentenced Mendez-Ramirez to 48 months of imprisonment. This sentence fell at the low end

of the advisory Guidelines sentencing range calculated by the District Court.

       Mendez-Ramirez contends that the District Court procedurally erred at sentencing by

failing to explain its rejection of his argument that the Guideline for reentry after deportation

is flawed. He also contends that his sentence is substantively unreasonable.

                                               II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. §

3742(a). We apply the abuse of discretion standard to both Mendez-Ramirez’s claim of

procedural error and his challenge to the substantive reasonableness of his sentence. United

States v. Tomko, 

, 567 (3d Cir. 2009) (en banc) (citations omitted).




  2
    A district court located in a fast-track district may depart downward four levels from the
Guideline range for reentry after deportation if the defendant agrees to plead guilty almost
immediately after his or her arrest. See U.S.S.G. § 5K3.1. The District of New Jersey is not
a fast-track district. See United States v. Lopez, 

, 957 (3d Cir. 2011).

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                                              III.

                                               A.

       Mendez-Ramirez argues that the District Court procedurally erred by failing to give

meaningful consideration to all aspects of his argument that the Guideline for reentry after

deportation is flawed. See Rita v. United States, 

, 356-57 (2007) (noting that

“when a judge decides simply to apply the Guidelines to a particular case, doing so will not

necessarily require lengthy explanation,” however, when a defendant “presents nonfrivolous

reasons for imposing a different sentence . . . the judge will normally go further and explain

why he has rejected those arguments”). We have previously made it clear that a district court

is not required “to reject a particular Guidelines range where that court does not, in fact, have

disagreement with the Guideline at issue.” United States v. Lopez-Reyes, 

, 671

(3d Cir. 2009) (citing United States v. Arrelucea-Zamudio, 

, 148-49 (3d Cir.

2009), and United States v. Gunter, 

, 249 (3d Cir. 2006)). Moreover, the

District Court is not “required to engage in ‘independent analysis’ of the empirical

justifications and deliberative undertakings that led to a particular Guideline.” 

States v. Aguilar-Huerta, 

, 368 (7th Cir. 2009), and United States v.

Duarte, 

, 530 (5th Cir. 2009)). See also 

(“[W]e do not think a judge is required to consider . . . an argument that a guideline is

unworthy of application in any case because it was promulgated without adequate

deliberation. He should not have to delve into the history of a guideline so that he can satisfy



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himself that the process that produced it was adequate to produce a good guideline. For if

he is required to do that, sentencing hearings will become unmanageable, as the focus shifts

from the defendant’s conduct to the ‘legislative’ history of the guidelines.” (citing United

States v. Huffstatler, No. 08-2622, 

, at *3 (7th Cir. 2009); United States

v. O’Connor, 

, 398 (8th Cir. 2009); and United States v. Mondragon-Santiago,

, 366-67 (5th Cir. 2009))).

       In this case, while the District Court did not engage in an on-the-record analysis of the

history of the Guideline, it did explain why the Guideline was appropriate in this case. The

District Court evaluated the nature and circumstances of Mendez-Ramirez’s offense as well

as his history and characteristics in reaching the conclusion that a sentence within the

Guideline range would be appropriate for him:

              I have reviewed the presentence report very carefully. The
              guideline range for this defendant, based on the calculation
              which Probation engaged in, is 46 to 57 months in custody.

              I think that that calculation is fair. I appreciate [that defense
              counsel] disagrees, and thinks that the enhancement is greater
              than necessary. But when you consider how often Mr. Ramirez
              came back after being deported, when you consider his inability
              to live a life free of crime, an organized life. Now, I appreciate
              that his language skill is limited, he doesn’t speak the kind of
              English that would make it easy for him to get a job, he went as
              far as second grade, he’s from Guatemala, he’s not had a steady
              marital or family life, he’s got children, but in different
              households. It’s just unfortunate. He was shot, suffered from
              a serious jaw injury. In many ways, Mr. Ramirez is a person one
              would feel sorry for.

              But he has not taken the opportunities to separate himself from

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              a life of crime, and I can’t give him the kind of sentence that
              [defense counsel] asks for because he did not comply with the
              deportations that took place. He was not supposed to come
              back; he did, more than once.

              So, I think the guideline sentence is appropriate.

(App. at 18.) Since the District Court concluded, after considering Mendez-Ramirez’s

argument, that the sentencing range that resulted from the application of U.S.S.G. § 2L1.2

was appropriate to Mendez-Ramirez’s specific circumstances, it was not required to analyze

the “empirical justifications and deliberative undertakings” undergirding that Guideline.

. We conclude, accordingly, that the District Court’s failure to

explain why it rejected Mendez-Ramirez’s argument regarding the supposed flaws in the

Guideline for reentry after deportation does not constitute procedural error.

                                             B.

       Mendez-Ramirez also argues that his sentence is substantively unreasonable because

it was infected by the District Court’s procedural errors. We “‘review the substantive

reasonableness of the sentence under an abuse-of-discretion standard, regardless of whether

it falls within the Guidelines range.’” United States v. Sevilla, 

, 230 (3d Cir.

2008) (quoting United States v. Wise, 

, 218 (3d Cir. 2008), and citing Gall v.

United States, 

, 51 (2007)). Ultimately, “[t]o determine whether a sentence is

reasonable, the court must examine ‘whether the record as a whole reflects rational and

meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).’” United States

v. Goff, 

, 254 (3d Cir. 2007) (quoting United States v. Grier, 

, 571

                                             7
(3d Cir. 2007) (en banc)) (additional citation omitted). Furthermore, “absent any significant

procedural error, we must ‘give due deference to the district court’s determination that the

§ 3553(a) factors, on a whole,’ justify the sentence.” 

(quoting 

, and citing United States v. Bungar, 

, 543 (3d Cir. 2007)). “In

other words, if the district court’s sentence is procedurally sound, we will affirm it unless no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” 

determined that the District Court did not make any procedural error in

deciding that the Guideline for reentry after deportation was appropriate in this case. The

District Court sentenced Mendez-Ramirez near the bottom of the advisory Guideline

sentencing range calculated based on that Guideline. See 

(“If the

sentence is within the Guidelines range, the appellate court may, but is not required to, apply

a presumption of reasonableness.” (citing 

)). The record further reflects

that the District Court considered the § 3553(a) factors in determining Mendez-Ramirez’s

sentence and specifically addressed on the record the nature and circumstances of Mendez-

Ramirez’s offense, his history and characteristics, and the need for specific deterrence. In

addition, the record demonstrates that the District Court was aware that, at the time of his

sentencing, Mendez-Ramirez faced state charges for serious crimes, including aggravated

assault, unlawful possession of a weapon, assault on a police officer, and burglary. We

conclude that the “record as a whole reflects rational and meaningful consideration of the



                                               8
factors enumerated in 18 U.S.C. § 3553(a).” 

(internal quotation and

citations omitted). Moreover, based upon this record, we cannot say that “no reasonable

sentencing court would have imposed the same sentence on [Mendez-Ramirez] for the

reasons the district court provided.” 

the foregoing reasons, we will affirm the judgment of the District Court.




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