Case: 14-10502      Document: 00512809721         Page: 1    Date Filed: 10/21/2014




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

                                    No. 14-10502
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                       October 21, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

CARLOS SOTELO-RAMIREZ,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                 No. 4:13-CR-183




Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *


       Carlos Sotelo-Ramirez pleaded guilty of having been found unlawfully in


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-10502     Document: 00512809721     Page: 2      Date Filed: 10/21/2014


                                  No. 14-10502

the United States following deportation and was sentenced to 36 months in
prison and three years of supervised release. The district court indicated that
the sentence, which was above the advisory guideline range of 18 to 24 months,
was a variance under 18 U.S.C. § 3553(a).
      In his sole issue on appeal, Sotelo-Ramirez does not question the sub-
stantive reasonableness of the sentence but contends it is procedurally unrea-
sonable because the district court misinterpreted U.S.S.G. §§ 4A1.3 and 5K2.0
in determining that an above-guideline sentence was warranted. To the extent
that Sotelo-Ramirez challenges the sentence as an upward departure under
the Guidelines, his argument is without merit. The court did not impose a
departure but instead specifically stated that the sentence constituted a vari-
ance in light of the § 3553(a) factors.
      Sotelo-Ramirez contends that although the district court cited the
§ 3553(a) factors, it was influenced by an erroneous departure standard regard-
ing underrepresentation of criminal history. Sotelo-Ramirez maintains that
courts must consider and correctly apply the guidelines, including the depar-
ture provisions, before imposing a variance under § 3553(a). The case on which
he relies, however, says nothing about consideration of the guidelines-
departure provisions in relation to imposing a variance or non-guideline sen-
tence. See United States v. Gutierrez-Hernandez, 

, 256 (5th Cir.
2009) (“Without the correct guideline range, the court varies from the wrong
point.” (emphasis added)). The record demonstrates that the sentence was an
upward variance from the guideline range based on the factors set forth in
§ 3553(a), as thoroughly articulated by the district court.
      Sotelo-Ramirez has not shown any error in the determination that an
above-guideline sentence was warranted. Accordingly, the judgment of sen-
tence is AFFIRMED.



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