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  • United States v. Gerardo Ramirez-Alvarado, 11th Cir. (2015)

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    The United States Court of Appeals for the Eleventh Circuit affirmed Gerardo Ramirez-Alvarado's 72-month prison sentence for illegal reentry by an aggravated felon. Ramirez-Alvarado argued his sentence was too long given that he freely admitted his actual date of reentry, which affected his guidelines calculation. However, the court found the below-guidelines sentence reasonable, as the district court properly considered the advisory guidelines and varied downward, while also finding a shorter sentence would not adequately deter future illegal reentries or reflect Ramirez-Alvarado's criminal history.

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    Filed: 2015-06-08 Precedential Status: Non-Precedential Docket: 14-14696

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    The United States Court of Appeals for the Eleventh Circuit affirmed Gerardo Ramirez-Alvarado's 72-month prison sentence for illegal reentry by an aggravated felon. Ramirez-Alvarado argued his sentence was too long given that he freely admitted his actual date of reentry, which affected his guidelines calculation. However, the court found the below-guidelines sentence reasonable, as the district court properly considered the advisory guidelines and varied downward, while also finding a shorter sentence would not adequately deter future illegal reentries or reflect Ramirez-Alvarado's criminal history.

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    United States v. Gerardo Ramirez-Alvarado, 11th Cir. (2015)

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    Scribd Government Docs
    The United States Court of Appeals for the Eleventh Circuit affirmed Gerardo Ramirez-Alvarado's 72-month prison sentence for illegal reentry by an aggravated felon. Ramirez-Alvarado argued his sentence was too long given that he freely admitted his actual date of reentry, which affected his guidelines calculation. However, the court found the below-guidelines sentence reasonable, as the district court properly considered the advisory guidelines and varied downward, while also finding a shorter sentence would not adequately deter future illegal reentries or reflect Ramirez-Alvarado's criminal history.

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    of 5

    Case: 14-14696

    Date Filed: 06/08/2015

    Page: 1 of 5

    [DO NOT PUBLISH]

    IN THE UNITED STATES COURT OF APPEALS


    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 14-14696
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:14-cr-00093-ODE-JSA-1

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    versus
    GERARDO RAMIREZ-ALVARADO,
    a.k.a. Cesar Orlando Alvarado,
    Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ________________________
    (June 8, 2015)
    Before ED CARNES, Chief Judge, MARCUS, and WILLIAM PRYOR, Circuit
    Judges.
    PER CURIAM:

    Case: 14-14696

    Date Filed: 06/08/2015

    Page: 2 of 5

    In 2014, officers from the Douglasville, Georgia police department arrested


    Gerardo Ramirez-Alvarado on charges of shoplifting. A few days later, an
    Immigration and Customs Enforcement officer interviewed him. During the
    interview, he admitted that he had illegally entered the United States for the fourth
    time in 2012.
    Ramirez-Alvarado later pleaded guilty to one count of illegal reentry by an
    aggravated felon, in violation of 8 U.S.C. 1326(a) & (b)(2). In sentencing him
    for that crime, the district court calculated his advisory guidelines range as 77 to 96
    months imprisonment. It then varied downward and imposed a 72-month sentence.
    Ramirez-Alvarado contends that his downward variance sentence was
    substantively unreasonable that the court did not go low enough. The thrust of
    his argument is that he should have gotten some credit for freely admitting his date
    of reentry to ICE officials. But for his honesty, Ramirez-Alvarado argues, he
    might have been found to have commenced his illegal reentry offense in 2014,
    his encounter date of reentry, as opposed to 2012, his actual date of reentry. If
    that were the case, his advisory guidelines range would have been significantly
    lower 37 to 46 months instead of 77 to 96 months because two of his prior
    convictions would not have received criminal history points, and he would have
    received only a 12-level, as opposed to a 16-level, enhancement under United
    States Sentencing Guidelines 2L1.2(b)(1)(A). See U.S.S.G. 4A1.2(e)
    2

    Case: 14-14696

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    (explaining that certain prior convictions are not scored if the resulting sentence
    was imposed too many years before the defendant commenced his instant
    offense of conviction); id. 2L1.2(b)(1)(A) (providing that, if a defendant
    previously was deported after having been convicted of a felony that is a crime of
    violence, he receives a 16-level enhancement if the conviction was scored and a
    12-level enhancement if it was not); United States v. Castrillon-Gonzalez, 77 F.3d
    403, 406 (11th Cir. 1996) (holding that, for purposes of calculating a defendants
    criminal history score, the commencement of the crime of being found in the
    United States [under 8 U.S.C. 1326] is at the point of entry). He also argues
    that the district court failed to consider that the low end of his advisory guidelines
    range (77 months) was much higher than the 24-month sentence that he had
    received for a previous illegal reentry conviction, and that his personal history and
    characteristics merited a shorter sentence.
    We review the substantive reasonableness of a sentence under an abuse of
    discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597
    (2007). Under that deferential standard, we will vacate a sentence only if[] we are
    left with the definite and firm conviction that the district court committed a clear
    error of judgment in weighing the [18 U.S.C. 3553(a)] factors by arriving at a
    sentence that lies outside the range of reasonable sentences dictated by the facts of
    the case. United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
    3

    Case: 14-14696

    Date Filed: 06/08/2015

    Page: 4 of 5

    (quotation marks omitted). The party challenging a sentence has the burden of
    showing that the sentence is unreasonable in light of the entire record, the
    3553(a) factors, and the substantial deference afforded sentencing courts. United
    States v. Langston, 590 F.3d 1226, 1236 (11th Cir. 2009).
    Ramirez-Alvarados 72-month sentence is substantively reasonable. For
    starters, it is a below-guidelines sentence. Because we ordinarily expect withinguidelines sentences to be reasonable, see United States v. Asante, 782 F.3d 639,
    648 (11th Cir. 2015), that fact alone is a strong indicator of the sentences
    reasonableness. Equally to the point, the sentence was not the product of a clear
    error in judgment. The district court considered the advisory guidelines range,
    treated it as advisory, and varied downward based on the fact that old
    convictions trigger[ed] a very large adjustment in the calculation of the guideline
    range.1 It did not vary downward as much as Ramirez-Alvarado would have
    liked, however, because it determined that a shorter sentence (such as the 24month sentence that he previously received for the same crime) would not
    adequately deter him from illegally entering the country a fifth time. The court
    also determined that a shorter sentence would not adequately account for the fact
    that he had committed multiple crimes each time he had entered the United States,

    In a way, then, the district court did give Ramirez-Alvarado credit for being honest with
    ICE. Of course, his real reward was not receiving an obstruction of justice enhancement. See
    U.S.S.G. 3C1.1.
    4

    Case: 14-14696

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    including burglaries of private residences, burglary of a motor vehicle, multiple


    thefts, driving without a license, and driving under the influence. RamirezAlvarado has failed to meet his burden of showing that his downward variance
    sentence is unreasonably long in light of the 3553(a) factors and the facts of his
    case.
    AFFIRMED.

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