United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-1352

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Juan Carlos Chavez-Ramirez, also *

known as Lorenzo Cruz Sanchez, * [UNPUBLISHED]

also known as Lorenzo Sanchez-Cruz, *

*

Appellant. *

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Submitted: September 23, 2011

Filed: January 18, 2012

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Before LOKEN, BEAM, and MURPHY, Circuit Judges.

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PER CURIAM.

Juan Chavez-Ramirez appeals his below-Guidelines sentence of 14 months, 

19 days, for illegal re-entry in violation of 8 U.S.C. § 1326(a). We affirm.
I. BACKGROUND

Chavez-Ramirez was deported in 1997, after living illegally in the United

States for almost twenty-four years, from the time he was six or seven years old. He 1

soon returned after deportation, and following his felony conviction for possession

of cocaine, was deported in 2005. Once again, he returned almost immediately, was

detected at the border, and was again deported six days later in 2005. He apparently

returned to the United States, and, following his detection after a traffic stop in March

2010, Chavez-Ramirez was charged with, and pleaded guilty to, the current offense.

At sentencing, Chavez-Ramirez requested that the district court depart 2

downward based upon United States Sentencing Guidelines Manual § 2L1.2, cmt. n.8

(suggesting a downward departure for "cultural assimilation" if the defendant was

brought to the United States illegally as a young child and had resided here

continuously since that time). The district court declined this invitation, stating that

Chavez-Ramirez did not meet the requirements ofthe cultural assimilation guideline. 

The district court found that Chavez-Ramirez did not "continuously reside" in the

United States since childhood because of the deportations in 1997 and 2005. The

court also explained that Chavez-Ramirez's significant criminal history, including two

felonies (cocaine possession and forgery), three misdemeanors (burglary, domestic

assault and petty theft), and two traffic offenses, precluded Chavez-Ramirez from

qualifying for the departure.

The presentence investigation report calculated Chavez-Ramirez's advisory

Guidelines range as 15-21 months. The district court sentenced Chavez-Ramirez just

below the bottom of the range to 14 months plus 19 days, to reflect credit for the 11

The record is not entirely clear on this point.

1

The Honorable Stephen N. Limbaugh, Jr., United States District Court for the

2

Eastern District of Missouri.

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days Chavez-Ramirez spent in the custody of Immigration awaiting prosecution in

federal court. On appeal, Chavez-Ramirez argues that the district court committed

procedural error in its application of U.S.S.G. § 2L1.2; that the district court erred in

refusing to reduce his sentence to account for disparities between illegal re-entry

defendants in the Eastern District of Missouri and those in "fast-track" districts; and

that the district court failed to adequately explain the reasons for his sentence.

II. DISCUSSION

We review Chavez-Ramirez's sentence under an abuse-of-discretion standard

to determine whether the sentence is free of procedural error and whether it is

substantively unreasonable. United States v. Schmidt, 571 F.3d 743, 748 (8th Cir.

2009). The denial of a downward departure is unreviewable unless the district court

had an unconstitutional motive or an erroneous belief that it was without the authority

to grant the departure. United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir.

2009). 

The district court did not commit procedural error in concluding that ChavezRamirez did not qualify for downward departure relief under § 2L1.2. Application

note 8 to this guideline provides that there may be cases in which a downward

departure is appropriate based upon the circumstances of a defendant who was

brought as a child to the United States and lived most of his or her life here. The note

recommends that the district court take into account whether the defendant

continually resided in the United States, and the seriousness and extent of the

defendant's criminal history, focusing on the criminal acts which occurred after the

defendant had illegally reentered. U.S.S.G. § 2L1.2, cmt. n.8. Chavez-Ramirez

argues the district court erred in requiring his continuous physical presence in the

United States in order to qualify for relief, and argues that as someone who

immediately returned after each deportation, he has "continuously resided" in the

United States since he was a young child. Even if this is true, the district court's

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alternate basis for denying relief–based upon Chavez-Ramirez's significant criminal

history–provides a permissible basis to deny the departure. Accordingly, the district

court did not have an unconstitutional motive in refusing to apply the downward

departure guideline, nor wasthe court operating under an erroneous belief that it was

without authority to grant the departure. See Anderson, 570 F.3d at 1034.

Second, the district court did not err in applying the four-level enhancement

from U.S.S.G. § 2L1.2 for Chavez-Ramirez's illegal re-entry as a convicted felon. 

Chavez-Ramirez argues that this guideline is "fundamentally flawed" and results in

a sentencing range that overstates the seriousness of Chavez-Ramirez's offense and

constitutes double counting or double punishment. Chavez-Ramirez also assertsthat

there is no empirical evidence to support this particular guideline. Two of ChavezRamirez's arguments are foreclosed by circuit precedent. United States v. Dyck, 334

F.3d 736, 740 (8th Cir. 2003) (holding that § 2L1.2 does not double count because

the Sentencing Commission intended that the prior conviction be used to both

enhance a base offense level and calculate a criminal history score); United States v.

Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (rejecting the inadequate-empiricaldata argument because it is properly made to the district, not appellate, court). And

the district court did not err in refusing to find that the sentencing range overstated

the seriousness of Chavez-Ramirez's offense.

Chavez-Ramirez's argument regarding the disparity between non-fast-track

districts and fast-track districts is also without merit. Although it could have varied

downward on this basis, the district court's failure to do so was certainly not an abuse

of its discretion. United States v. Bolivar-Diaz, 594 F.3d 1003, 1004-05 (8th Cir.

2010) (rejecting defendant's substantive reasonableness challenge when one of the

arguments presented to the district court was the unfairness of having resided in a

non-fast-track district). Finally, Chavez-Ramirez's argument that the district court did

not adequately explain the sentence is belied by the record.

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III. CONCLUSION

We affirm the sentence imposed by the district court.

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