* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11323

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JULIAN DIAZ RAMIREZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:96-CR-10

Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Julian Diaz Ramirez (“Ramirez”) appeals the district court’s imposition of

a 24-month term of imprisonment upon revocation of his supervised release. For

the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Ramirez pleaded guilty in the United States District Court for

the Northern District of Texas, Dallas Division (the “Dallas court”) to illegally

re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a)

United States Court of Appeals

Fifth Circuit

F I L E D

February 4, 2008

Charles R. Fulbruge III

Clerk
No. 06-11323

2

and (b)(1). On April 11, 1996, the Dallas court sentenced him to 60 months’

imprisonment and three years’ supervised release on the condition that he

surrender for deportation on completion of his term of imprisonment. On March

14, 2000, he was released from prison and deported to Mexico. Ramirez again

entered the United States illegally, and on February 20, 2002, he was convicted

in the United States District Court for the Northern District of Mississippi (the

“Mississippi court”) of illegal reentry in violation of 8 U.S.C. § 1326(b)(2). The

Mississippi court sentenced him to another 60 months’ imprisonment and three

years’ supervised release. On April 26, 2002, Ramirez’s probation officer

petitioned the Dallas court to issue a supervised release violator’s warrant,

alleging thatthe Mississippi court conviction showed that Ramirez had violated

the terms of his first supervised release. Before this warrant was executed,

however, Ramirez completed the term of imprisonment the Mississippi court had

imposed, and he was deported in December 2005. It is not clear why the

warrant was not executed prior to his deportation.

On August 14, 2006, Ramirez was convicted in the United States District

Court for the Western District of Texas, Del Rio Division (the “Del Rio court”) of

a third illegal reentry in violation of 8 U.S.C. § 1326, and the court sentenced

him to 77 months’ imprisonment and three years’ supervised release. The

warrant for his arrest for violation of the terms of his supervised release for his

Dallas conviction was finally executed on October 13, 2006, and shortly

thereafter Ramirez’s probation officer filed a supplemental petition to revoke

supervised release based on his Del Rio conviction in addition to his Missisippi

conviction. The Mississippi court also issued another supervised release

violator’s warrant based on Ramirez’s Del Rio conviction. 
No. 06-11323

1 Ramirez’s supervised release was originally set to expire in March 2003; however, his

release term was tolled during his subsequent periods of imprisonment. See 18 U.S.C.

§ 3624(e). Thus, Ramirez’s release period had not expired by the time the revocation hearing

was held.

2

In addition to the 24-month statutory maximum term of imprisonment, the district

court could have imposed a one-year term of supervised release. See 18 U.S.C. § 3583(h).

3

On November 9, 2006, the Dallas court (the district court from which

defendant currently appeals) held a revocation hearing.1 At the hearing,

Ramirez pleaded true to the allegations in the probation officer’s petition to

revoke his supervised release and asked the court to consider the sentences he

had already received for his conduct. The district court noted that the statutory

maximum term of imprisonment was 24 months and that the Sentencing

Commission policy statement recommended a range of imprisonment of 21 to 24

months. The district court also noted that Ramirez had been deported on three

prior occasions and had illegally reentered on at least two prior occasions. It

pointed out that Ramirez was already subject to a term of supervised release

from the Del Rio court. The court then revoked Ramirez’s supervised release,

imposed a sentence of 24 months’ imprisonment, and stated that it would not

impose any additional term of supervised release.2 Ramirez did not object to his

sentence. In its written judgment, the court recommended that Ramirez be

incarcerated in a facility where he could undergo treatment for his medical

problems. In sum, then, in addition to the 177 months’ total imprisonment

Ramirez had previously received for his three illegal border crossing convictions,

the district court sentenced him to a 24-month revocation sentence based on his

breach of the supervised release agreement he entered after the first conviction.

Ramirez timely appealed the imposition of the 24-month revocation sentence,

challenging its reasonableness.
No. 06-11323

3

In Peltier, we rejected the Seventh Circuit’s view that a defendant need not object to

a sentence as unreasonable after its pronouncement to avoid plain error review. 505 F.3d at

391. We declined to follow the Seventh Circuit’s reasoning that such a strict requirement for

reasonableness challengeswould“‘create a trap forunwary defendants andsaddle busy district

courts with the burden of sitting through an objection–probably formulaic–in every criminal

case.’” Id. (quoting United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005)). We

noted that “the rule requiring objection to error [is] one of the most familiar procedural rubrics

in the administration of justice.” Id. at 391-92 (internal quotation marks omitted). 

4

II. JURISDICTION AND STANDARD OF REVIEW

This is an appeal of a sentence following revocation of supervised release

in a criminal case. This court has jurisdiction under 18 U.S.C. § 3742(a). 

Traditionally, we have reviewed revocation sentences to determine

whether they are “plainly unreasonable” because they involve no applicable

sentencing guidelines. See, e.g., United States v. Gonzalez, 250 F.3d 923, 925

(5th Cir. 2001). However, Ramirez argues that after the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220, 261 (2005), which established

a “reasonableness” standard of review for post-conviction sentences, we must

review all sentences, including revocation sentences, under the reasonableness

standard. We have not yet decided whether Booker affects the standard we use

to review revocation sentences. See, e.g., United States v. Jones, 484 F.3d 783,

791-92 (5th Cir. 2007). However, we need not address the issue to resolve this

case. Because Ramirez did not object to the reasonableness of his sentence in

the district court, the sentence is subject only to plain error review. United

States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007).3 Under plain error review,

“We may correct the sentencing determination only if (1) there is error (and in

light of Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it

is plain; and (3) it affects substantial rights.” Peltier, 505 F.3d at 392. Moreover,

the decision to correct the forfeited error is “within the sound discretion of the

court of appeals, and the court should not exercise that discretion unless the
No. 06-11323

5

error seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks omitted). 

III. DISCUSSION

Section 3583(e) of Title 18, United States Code, requires a court to consider

several of the factors listed in 18 U.S.C.§ 3553(a) when it imposes a sentence

following revocation of supervised release. The court must consider (1) the

nature and circumstances of the offense and the history and characteristics of

the defendant; (2) the need for the sentence imposed to afford adequate

deterrence to criminal conduct; (3) the need for the sentence imposed to protect

the public from further crimes of the defendant; (4) the need for the sentence

imposed to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner; (5)

the kinds of sentence and the sentencing range issued by the Sentencing

Commission pursuant to 28 U.S.C. § 994(a)(3); (6) any pertinent policy

statements issued by the Sentencing Commission pursuant to 28 U.S.C.

§ 994(a)(2); (7) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct;

and (8) the need to provide restitution to any victims of the offense. 18 U.S.C.

§§ 3583(e), 3553(a). “Implicit consideration of the § 3553 factors is sufficient.”

United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). The Sentencing

Commission has not issued guidelines applicable to revocation sentences; it has

instead promulgated only policy statements. U.S. SENTENCING GUIDELINES

MANUAL (“USSG”) ch. 7, pt. A(1), introductory cmt. (2006). 

Ramirez makes three arguments in support of his contention that the

district court failed to consider and properly balance the relevant sentencing

factors in imposing a 24-month sentence. First, he claims that the district court

failed to give sufficient weight to the previous sentences he has received. He

notes that when the district court imposed its revocation sentence, the two
No. 06-11323

4 We reject Ramirez’s contention that his three illegal border crossings should be

considered together as a single offense. See United States v. Alvarado-Santilano, 434 F.3d 794,

798 (5th Cir. 2005) (“[B]eing found in the United States by immigration officials is sufficient

to extinguisha pre-existing andcontinuing offense arising from prior illegal reentries. Because

the initial [8 U.S.C.] § 1326 violation is extinguished, a subsequent reentry gives rise to a

separate offense, and neither offense should be considered a part of the other . . . .”). 

6

reentry offenses that formed the basis of the revocation had already been

punished by the Mississippi and Del Rio courts. He also points out that he had

already received a total of 197 months’ imprisonment for his three illegal border

crossings. With this argument, Ramirez fails to recognize that each sentence he

received was for a distinct violation. Ramirez’s first Dallas sentence, his

Mississippi sentence, and his Del Rio sentence were based the three distinct

violations of 8 U.S.C. § 1326 he committed by illegally entering the country on

three separate occasions.4 His revocation sentence, however, was based on a

separate violation: the breach of trust he committed when he violated the terms

of his supervised release imposed by the Dallas court in 1996. 

The Sentencing Commission has recognized that “as a breach of trust

inherent in the conditions of supervision, the sanction for the violation of trust

should be in addition, or consecutive, to any sentence imposed for the new

conduct.” USSG ch. 7, pt. A(3)(b), introductory cmt.; see also USSG § 7B1.3(f)

(“Any term of imprisonment imposed upon the revocation of . . . supervised

release shall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving, whether or not the sentence of

imprisonment being served resulted from the conduct that is the basis of the

revocation of . . . supervised release.”); United States v. Simtob, 485 F.3d 1058,

1063 (9th Cir. 2007) (“The idea behind [the USSG chapter seven] punishment

scheme is that the violator should be punished both for breaching the court’s

trust and for the new criminal conduct, as each act is separately and distinctly

offensive.”); United States v. Zamora-Vallejo, 470 F.3d 592, 596 n.6 (5th Cir.
No. 06-11323

7

2006) (stating that “while the same conduct might trigger revocation of

supervised release and constitute [a new crime], that does not mean it is the

same conduct that is being punished in two such sentences”). We have

repeatedly upheld revocation sentences that ran consecutively with sentences

for the underlying offense leading to the revocation. See, e.g., United States v.

Rocha-Ramirez, 243 F. App’x 22, 23 (5th Cir. 2007) (unpublished) (upholding a

12-month revocation sentence to be served in addition to a 27-month sentence

for the offense that led to the revocation); United States v. Deal, 237 F. App’x

909, 910-11 (5th Cir. 2007) (unpublished) (upholding a 10-month revocation

sentence imposed in addition to a 33-month sentence for the offense underlying

the revocation). In light of these Sentencing Commission statements and cases,

it was reasonable for the district court to impose a revocation sentence for

Ramirez’s breach of trust that was in addition to his sentences for the new

criminal conduct that constituted the breach of trust. We also note that the

district court did consider Ramirez’s previous sentences when it noted that

Ramirez had already received a term of supervised release from the Del Rio

court and decided not to impose any additional term of supervised release.

Therefore, the district court did not fail to give adequate weight to Ramirez’s

previous sentences and thus did not commit any error, much less plain error. 

Second, Ramirez argues that the court below erred by effectively

overruling the judgment of the Mississippi court, which had all of the relevant

facts before it and imposed a sentence of only 77 months. Ramirez contends that

because the Mississippi court could have imposed a longer sentence but did not

do so, it must have concluded that a longer sentence was unnecessary. Ramirez

asserts that the district court should have deferred to that conclusion and

imposed no additional sentence. This argument is also unavailing. As discussed

above, Ramirez’s breach of his supervised release agreement was a distinct

offense from his reentry offenses. The Mississippi court may have had before it
No. 06-11323

5 Ramirez cites United States v. Danser, 270 F.3d 451, 455 (7th Cir. 2001), in support

of his argument that the court below should have deferred to the conclusion of the Mississippi

court that 77 months was a sufficient sentence. Danser is inapposite. In Danser, a district

court sentenced Danser to 370 months’ imprisonment and three consecutive three-year

supervised release terms. Id. at 453. On appeal, the Seventh Circuit found that the district

court had erred in making the supervised release terms consecutive. Id. at 454. It rejected the

government’s request to remand the case so the district court could consider whether to impose

a longer term of imprisonment, reasoning that “[t]he district court could have sentenced

Danser to additional prison time, but chose not to do so . . . .” Id. Unlike Danser, which

involved a proposed resentencing by the same court for the same offense, Ramirez’s case

involves a second sentence by a different court for a different offense—the breach of the

supervised release agreement. 

8

all of the facts, but it did not have before it the issue of what punishment was

required for the breach ofthe supervised release agreement. There was no need

for the district court to defer to the conclusion of another court that was

addressing a different issue.5 Thus, its decision not to do so was reasonable and

did not constitute error or plain error. 

Third, Ramirez argues that the district court erred by failing to consider

the unfairness of the government’s failure to execute the revocation warrant

prior to Ramirez’s deportation. Ramirez claims that had the warrant been

executed in a timely fashion instead of being “saved up” until after Ramirez had

committed another violation, his revocation sentence might have been shorter

because the district court would have had only one supervised release violation

to consider in imposing its revocation sentence. Ramirez also cites United States

v. Tyler, 605 F.2d 851, 853 (5th Cir. 1979), for the proposition that it is

fundamentally unfair to a defendant to withhold allegations that would justify

revocation.

This argument fails as well. Ramirez’s reliance on Tyler is misplaced. In

Tyler, we held that a defendant’s due process rights were violated when a

probation officer filed a revocation petition based on one offense but deliberately

withheld several previous convictions from the petition, then brought a second

revocation petition based on the earlier convictions after the first revocation
No. 06-11323

9

petition had failed. Id. We found that the “lengthy delay, coupled with the

probation officer’s obvious decision not to file these charges in the first petition,

[was] fundamentally unfair.” Id. In a later case, we noted that the fundamental

unfairness determination in Tyler “was based in large part on the probation

officer’s failure to include all known violations in the first motion to revoke,

raising them only after the outcome of the first proceeding failed to satisfy him.”

Jones v. Johnson, 230 F.3d 825, 827 (5th Cir. 2000). In Ramirez’s case, in

contrast, the probation officer did not withhold any known violations in any

revocation petition in an attempt to obtain multiple opportunities to revoke

Ramirez’s sentence, nor did he file a petition in the absence of any new

violations. The probation officer included all of the information he had in the

initial revocation petition and supplemented the petition with additional new

violations as they occurred. Rather than being unfair to Ramirez, the fact that

the revocation warrant was not executed earlier gave Ramirez a chance to avoid

punishment for his first violation of the supervised release agreement, a chance

he forfeited when he again illegally entered the United States.

Moreover, even assuming arguendo that the district court erred by not

considering the delay in the execution of the warrant, Ramirez has not satisfied

the other prongs of the plain error test for this alleged error. For an error to be

plain, it must be “obvious.” United States v. Olano, 507 U.S. 725, 734 (1993).

Because Ramirez points to no cases or other sources of law directly supporting

his argument and because consideration ofthis issue would have affected neither

the statutory maximum nor the policy statement’s recommended range, the

alleged error was not clear or obvious. In addition, Ramirez has not shown that

the alleged error affected his substantial rights. Although it is possible that the

district court based its decision to sentence Ramirez at the top of the range in

part on the fact that Ramirez had committed two release violations instead of

one, the record does not reveal whether that is the case. Because Ramirez has
No. 06-11323

10

not shown “a reasonable probability that, but for the district court’s

misapplication of the [sentencing factors], he would have received a lesser

sentence,” United States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005), he has

not shown that his substantial rights were affected. 

In sum, the record indicates that Ramirez’s sentence was reasonable and

that the district court properly considered the relevant sentencing factors in

imposing sentence. The court explicitly mentioned that the policy statement

range was 21-24 months and imposed a sentence within that range. The court

also stated that Ramirez had been deported on three prior occasions and had

illegally reentered on at leasttwo prior occasions, showing thatit considered the

defendant’s history and characteristics and the need to protect the public from

future crimes. It also mentioned that regardless of the sentence it imposed, the

defendant would be subject to supervised release as part of the Del Rio case, and

it decided not to impose a term of supervised release;this shows that the district

court did consider Ramirez’s previous sentences. Finally, in its written

judgment, the court recommended that Ramirez be placed in a facility where he

could receive medical care, demonstrating that it considered the need for the

sentence imposed to provide for Ramirez’s medical requirements. None of

Ramirez’s arguments establish that the sentence was unreasonable or that the

district court committed error or plain error.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.