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. 09-40621

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FRANCISCO JAVIER GARCIA-RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:09-CR-180-1

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Francisco Javier Garcia-Ramirez pleaded guilty without an agreement to

one count of being unlawfully present in the United States in violation of 8

U.S.C. § 1326. The district court sentenced him to 77 months in prison, at the

low end of the guidelines range of 77 to 96 months. Garcia-Ramirez now

appeals.

Garcia-Ramirez first contends that the district court committed procedural

error by failing to give adequate reasons for rejecting his arguments for a

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2010

Lyle W. Cayce

Clerk

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No. 09-40621

2

nonguidelines sentence and by failing to give proper consideration to the 18

U.S.C. § 3553(a) factors, in particular, the mitigating effect of his alcohol abuse

and his need for treatment. As he raised no objection on either of these grounds,

we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d

357, 361 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). The record indicates that

the court heard and considered Garcia-Ramirez’s arguments and the relevant

factors. The court then gave detailed reasons tied to appropriate factors for

choosing a sentence within the guidelines range and rejecting the request for a

variance. Reasons more minimal than these have been deemed legally

sufficient. See Rita v. United States, 551 U.S. 338, 358)59 (2007); United States

v. Rodriguez, 523 F.3d 519, 525)26 (5th Cir. 2008). We discern no error))and

certainly no obvious error for purposes of plain error review))in the court’s

reasons or consideration of the § 3553(a) factors. In addition, Garcia-Ramirez

has failed to demonstrate that any error affected his substantial rights. See

Mondragon-Santiago, 564 F.3d at 364-65.

Garcia-Ramirez next challenges the substantive reasonableness of his

sentence. Although he made specific arguments in the district court that the

guidelines range was greater than necessary to satisfy the § 3553(a) factors, he

did not object to the sentence imposed as unreasonable. We need not reach his

contention that plain error review should not apply, cf. United States v. Peltier,

505 F.3d 389, 391)92 (5th Cir. 2007), as he has failed to show error under the

ordinary standard.

Garcia-Ramirez contends that double-counting of his convictions under

both U.S.S.G. § 2L1.2 and his criminal history results in an excessive sentence,

and that it is “perverse” to impose a greater sentence for illegal reentry than for

his prior cocaine-trafficking offenses. However, the district court was within its

discretion in rejecting these policy-based arguments. See Mondragon-Santiago,

564 F.3d at 366)67. Further, the court took the alleged sentencing disparity into

account by sentencing Garcia-Ramirez at the bottom of the range rather than at

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the top. He also contends that his alcohol abuse was a mitigating factor and that

his criminal history was overstated because his convictions were caused by his

alcohol abuse. The court plainly did not agree and believed that GarciaRamirez’s pattern of criminal behavior suggested a likelihood of recidivism. We

cannot say that was an abuse of discretion. In sum, we conclude that GarciaRamirez has not rebutted the presumption of reasonableness. See United States

v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009), cert. denied, 2010 WL 637943 (Mar.

22, 2010) (No. 09-9216). 

Garcia-Ramirez also challenges our plain error standard for evaluating

whether failure to give reasons affects substantial rights; the application of plain

error to his substantive reasonableness challenge; and the application of the

presumption of reasonableness to sentences enhanced under U.S.S.G. § 2L1.2,

which he contends is penologically flawed. To the extent that these arguments

are not obviated by our prior discussion, they are foreclosed. See MondragonSantiago, 564 F.3d at 364)67; Peltier, 505 F.3d at 391)92. Garcia-Ramirez

concedes as much and raises them to preserve them for further review.

Finally, the parties agree that the district court erred by entering a

judgment of conviction and sentence pursuant to 8 U.S.C. § 1326(b)(2), because

the Government did not establish for purposes of the statute that GarciaRamirez had a prior conviction for an aggravated felony as opposed to a felony.

Accordingly, we modify the judgment to reflect a conviction under 8 U.S.C.

§ 1326(b)(1), and we remand to the district court for the limited purpose of

correcting the written judgment to reflect this modification.

AFFIRMED AS MODIFIED; LIMITED REMAND FOR CORRECTION OF

JUDGMENT.

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