Filed: Jun. 15, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4732 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL LOPEZ-RAMIREZ, a/k/a Fernando Miranda, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00062-REP-1) Argued: May 12, 2010 Decided: June 15, 2010 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge Affirmed by unpublishe
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4732 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MIGUEL LOPEZ-RAMIREZ, a/k/a Fernando Miranda, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:09-cr-00062-REP-1) Argued: May 12, 2010 Decided: June 15, 2010 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge Affirmed by unpublished..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4732
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MIGUEL LOPEZ-RAMIREZ, a/k/a Fernando Miranda,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00062-REP-1)
Argued: May 12, 2010 Decided: June 15, 2010
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge
Affirmed by unpublished per curiam opinion.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Stephen David
Schiller, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Alexandria, Virginia, Mary E. Maguire,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Richmond, Virginia, for Appellant. Neil H. MacBride,
United States Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Miguel Lopez-Ramirez (Miguel) challenges the substantive
reasonableness of the fifty-nine month sentence imposed by the
district court following his guilty plea to the charge of
illegally reentering the United States following the commission
of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1). We
affirm.
I
Miguel is a citizen of Mexico. He unlawfully entered the
United States in April 2000, was convicted of assault with
bodily injury, resisting arrest, evading arrest, and related
counts in Tennessee state court in June 2001, and sentenced to a
term of imprisonment of eleven months, twenty-nine days, with
fifty percent of the sentence suspended. He was arrested by
federal immigration authorities in October 2001 and was removed
to Mexico in December 2001.
Sometime in March 2002, Miguel illegally reentered the
United States near El Paso, Texas. On July 5, 2002, he was
convicted of unlawful possession of a weapon and evading arrest
in Tennessee state court and sentenced to thirty days in jail.
On July 8, 2002, Miguel was arrested by federal immigration
authorities and the previous removal order was reinstated. On
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September 24, 2002, pursuant to the reinstated removal order,
Miguel was removed to Mexico.
On March 9, 2003, Miguel illegally reentered the United
States near Eagle Pass, Texas. On March 11, 2003, he was
arrested by United States Border Patrol officers in
Brackettville, Texas. For this reentry, Miguel was convicted on
October 10, 2003 in the United States District Court for the
Western District of Texas of illegally reentering the United
States following removal, 8 U.S.C. § 1326(a), a felony, and was
sentenced to eight months’ imprisonment. On November 10, 2003,
Miguel’s previous order of removal was reinstated. On November
13, 2003, pursuant to the reinstated removal order, Miguel was
removed to Mexico.
At some time in December 2003, Miguel illegally reentered
the United States near Laredo, Texas. On January 2, 2004,
Miguel was arrested by federal immigration authorities in Eagle
Pass, Texas. For this reentry, Miguel was convicted in the
United States District Court for the Western District of Texas
of illegally reentering the United States following removal, 8
U.S.C. § 1326(a), and was sentenced to twenty-one months’
imprisonment, with three years of supervised release. 1 After
1
Based on the criminal conduct that followed this § 1326(a)
conviction, Miguel is facing the revocation of his supervised
release.
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completing his sentence of imprisonment, on February 3, 2006,
Miguel’s previous order of removal was reinstated. On April 28,
2006, pursuant to the reinstated removal order, Miguel was
removed to Mexico.
At some time in February 2008, Miguel illegally reentered
the United States near Laredo, Texas. On July 9, 2008, Miguel
was arrested by federal immigration authorities in Atlanta,
Georgia. On July 17, 2008, Miguel’s previous order of removal
was reinstated. On August 2, 2008, pursuant to the reinstated
removal order, Miguel was removed to Mexico.
In December 2008, Miguel illegally reentered the United
States at an unknown location. On February 11, 2009, Miguel was
found in the Eastern District of Virginia by federal immigration
authorities while he was in the custody of the Sheriff’s Office
of Chesterfield County, Virginia, awaiting trial for DUI.
On February 17, 2009, a federal grand jury sitting in the
United States District Court for the Eastern District of
Virginia returned a one-count indictment charging Miguel with
illegally reentering the United States following the commission
of a felony and removal, 8 U.S.C. §§ 1326(a) and (b)(1). On May
7, 2009, Miguel pleaded guilty to this offense.
In preparation for sentencing, a presentence report was
prepared by a United States probation officer. The probation
officer concluded that Miguel’s total offense level was ten and
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his criminal history category was five, which resulted in a
sentencing range of twenty-one to twenty-seven months’
imprisonment. 2
At the sentencing hearing on July 24, 2009, neither party
objected to the PSR. After considering the presentence report,
Miguel’s conduct, the factors set forth in 18 U.S.C. § 3553(a),
and the advisory Sentencing Guidelines, the district court
determined that a sentence within the advisory sentencing range
would not serve the purposes of § 3553(a) and therefore elected
to impose an upward variance sentence of fifty-nine months’
imprisonment. The upward variance sentence was premised on the
following findings: (1) Miguel had “shown a remarkable disregard
for the law,” (J.A. 78); (2) he had been given reasonable
treatment under the law and that had not deterred him from
violating federal immigration laws; (3) he committed serious
crimes while in the United States; and (4) any sentencing
disparity resulting in this case was not unwarranted. Miguel
2
The probation officer arrived at the total offense level
of ten as follows: base offense level of eight, U.S. Sentencing
Guidelines Manual (USSG) § 2L1.2(a), plus four levels for the
commission of the instant offense after a prior felony
conviction, USSG § 2L1.2(b)(1)(D), and minus two levels for
acceptance of responsibility, USSG § 3E1.1(a). Miguel’s
criminal history category of five was premised on his twelve
criminal history points.
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noted a timely appeal, challenging the substantive
reasonableness of his sentence.
II
We review a sentence for reasonableness, applying an abuse-
of-discretion standard. Gall v. United States, 552 U.S. 38, 51,
(2007). Our initial review is for “significant procedural
error,” including “failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 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.”
Id.
We next “consider the substantive reasonableness of the
sentence imposed.”
Id. At this stage, we “take into account
the totality of the circumstances, including the extent of any
variance from the Guidelines range.”
Id. “If the district
court decides to impose a sentence outside the Guidelines range,
it must ensure that its justification supports the degree of the
variance.” United States v. Evans,
526 F.3d 155, 161 (4th
Cir.), cert. denied, 129 S. Ct. 476 (2008) (citation and
internal quotation marks omitted). This court presumes on
appeal that a sentence within a properly calculated advisory
sentencing range is substantively reasonable. United States v.
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Go, 517 F.3d 216, 218 (4th Cir. 2008); see also Rita v. United
States,
551 U.S. 338, 346-56 (2007) (upholding permissibility of
presumption of reasonableness for a sentence within the advisory
sentencing range).
There is no challenge to the procedural reasonableness of
the sentence, so we may proceed directly to the question of
substantive reasonableness. In this case, on the one hand,
Miguel’s fifty-nine month sentence is, percentage-wise, much
higher than the high-end of the sentencing range. On the other
hand, the district court correctly noted that Miguel has not
been deterred by short sentences in the past. In 2008 alone, he
twice illegally reentered the United States, and he has
illegally entered the United States six times. Even after being
twice convicted of illegally reentering the United States and
serving time for those offenses, he returned to the United
States less than two years after being released from
imprisonment. Moreover, Miguel has a series of uncharged
immigration violations which resulted in a lower sentencing
range, and his criminal history, aside from the immigration
violations, is less than stellar. While a district court’s
sentencing discretion is not unbounded, a sentencing appeal is
not an opportunity for the appellate court to substitute its
judgment for that of the district court. Here, understandably,
the district court concluded that Miguel had demonstrated a
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complete disregard for the laws of this country, needed to
respect the laws of this country, and needed to be deterred from
committing future violations. Finally, although the fifty-nine
month sentence is substantial, it does not create an unwarranted
disparity with similarly situated defendants and is well below
the ten-year statutory maximum established by Congress. In
short, we find no abuse of discretion in the upward variance
sentence imposed by the district court.
AFFIRMED
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