Case: 14-51084      Document: 00513142372         Page: 1    Date Filed: 08/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 14-51084                                FILED
                                  Summary Calendar                         August 5, 2015
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SERGIO NAVARRETE-RAMIREZ, also known as Sergio Navarette-Ramirez,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:14-CR-54


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Sergio Navarrete-Ramirez pleaded guilty to illegally reentering the
United States after deportation, and he was sentenced, within the guidelines
range, to 46 months of imprisonment and three years of supervised release.
Navarrete-Ramirez raises three issues on appeal: (1) he argues that the district
court erred in denying his motion for a downward departure based on his
cultural assimilation; (2) that the district court committed a procedural error


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-51084

by failing to consider his motion for a downward departure altogether; and (3)
he argues, for the first time, that his 46-month, within-guidelines sentence is
substantively unreasonable because it overstates the seriousness of his offense
and is greater than necessary to effectuate the sentencing goals of 18 U.S.C. §
3553(a).
      This court lacks jurisdiction to review the denial of a downward
departure from the Guidelines unless the denial was based on the district
court’s erroneous belief that it lacked the authority to depart. United States v.
Lucas, 

, 350 (5th Cir. 2008). “The jurisdictional bar applies even
where the district court responds to a request for a downward departure with
a summary denial without explanation or with an implicit denial by imposing
a Guideline sentence.” United States v. Hernandez, 

, 424 (5th Cir.
2006) (internal quotation marks and citation omitted).
      Although Navarrete-Ramirez argues that the district court believed it
lacked authority to depart under the Guidelines, his argument requires a
strained reading of the sentencing transcripts and ignores the context of the
district court’s statements. The record reflects that the district court implicitly
recognized its authority to depart but concluded that a sentence within the
guidelines range was appropriate. Because the record does not reflect that the
district court erroneously believed that it lacked authority to depart
downward, we lack jurisdiction to review the district court’s decision to deny a
downward departure. See Lucas, 516 F.3d at 350.
      Navarrete-Ramirez further claims that the district court committed a
procedural error in failing to consider his motion for a downward departure
prior to considering the § 3553(a) factors. He apparently contends that the
district court erred in failing to follow the Sentencing Guidelines’ three-part
framework. See United States v. Jacobs, 

, 782 (5th Cir. 2011).



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                                  No. 14-51084

Because Navarrete-Ramirez did not object on this basis before the district
court, our review is for plain error. United States v. Peltier, 

, 392
(5th Cir. 2007). Based on our careful review of the record, we discern no plain
error in this regard affecting Navarrete-Ramirez’s substantial rights. Id.
      Finally,   Navarrete-Ramirez      also   argues    that   his   sentence    is
substantively unreasonable because it overstates the seriousness of his offense
and is greater than necessary to effectuate the sentencing goals of § 3553(a).
In support of his argument, he asserts that his illegal reentry offense is
essentially an international trespass; that the illegal reentry Guideline,
U.S.S.G. § 2L1.2, is flawed because it is not empirically based and results in
the double counting of his criminal history; and that the district court failed to
adequately consider his history and circumstances, particularly his cultural
assimilation, in determining his sentence.
      Even if     Navarrete-Ramirez preserved his cultural            assimilation
argument, as that was the basis for his motion, he has failed to show that his
sentence is substantively unreasonable.        Although a defendant’s cultural
assimilation can be a mitigating factor at sentencing, a sentencing court need
not give this factor dispositive weight. See United States v. Rodriguez, 

, 232, 234-35 (5th Cir. 2011). Navarrete-Ramirez’s dissatisfaction
with the district court’s weighing of the § 3553(a) factors is insufficient to rebut
the presumption of reasonableness that attaches to his within-guidelines
sentence, see id., and we will not reweigh the district court’s assessment of the
§ 3553(a) factors, see Gall v. United States, 

, 51-52 (2007).
      Further, we have rejected arguments that a sentence is substantively
unreasonable because an illegal reentry offense is a nonviolent international
trespasses, United States v. Juarez-Duarte, 

, 212 (5th Cir. 2008),
and because the illegal reentry guideline is not based on “empirical data” and



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                               No. 14-51084

“double counts” prior offenses, United States v. Duarte, 

, 529-31
(5th Cir. 2009).     Navarrete-Ramirez has not shown, in light of these
arguments, that his within-guidelines sentence was the result of error, much
less plain error.
      AFFIRMED.




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