Case: 15-20365      Document: 00513370235         Page: 1    Date Filed: 02/04/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-20365                                  FILED
                                  Summary Calendar                          February 4, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DENYS RAMIREZ-PADILLA, also known as Denys Iban Ramirez Padilla, also
known as Ramiro Bruno, also              known as Melvin Ramirez,
true name, Melvin Tarik Ramirez-Padilla,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:15-CR-97


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Denys Ramirez-Padilla (Ramirez) pleaded guilty to being an alien
unlawfully found in the United States after a previous deportation in violation
of 8 U.S.C. § 1326(a) and (b). The district court sentenced him to 57 months of
imprisonment and a two-year term of supervised release. On appeal, Ramirez
argues that the district court imposed a sentence in violation of the Sixth


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20365    Document: 00513370235     Page: 2     Date Filed: 02/04/2016


                                 No. 15-20365

Amendment because it was based upon a judge-found fact not admitted by him
or proved to the jury beyond a reasonable doubt. Specifically, he challenges
the district court’s determination that he reentered the United States in 2008
while still under a criminal justice sentence, in spite of his contention that he
reentered the country in 2011.     Ramirez explains that this determination
resulted in the addition of two points to his criminal history score, and thus, a
higher advisory guidelines sentencing range. Ramirez relies on Justice Scalia’s
statement in a concurring opinion in Rita v. United States, 

, 372-
75 (2007), for the assertion that sentences within the statutory maximum term
of imprisonment would violate the Sixth Amendment if they would be
unreasonable but for the consideration of a fact found by the sentencing judge
and not by the jury. He notes that the reasonableness of the 57-month sentence
was based solely on the district court’s determination that Ramirez had not
been truthful about his reentry date. However, Ramirez has filed a motion for
summary disposition, conceding that his as-applied Sixth Amendment
challenge to the reasonableness of his sentence is foreclosed by this court’s
decision in United States v. Hernandez, 

, 374 (5th Cir. 2011).
      As he concedes, Ramirez is correct that his as-applied Sixth Amendment
challenge is foreclosed by 

. In Hernandez, we held
that a sentence within the statutory maximum that is based upon judge-found
facts does not violate the Sixth Amendment.        

motion for summary disposition is GRANTED, and the district court’s
judgment is AFFIRMED.




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