IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-51128

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JUAN RAMON-DIAZ,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:10-CR-523-1

Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Juan Ramon-Diaz (Ramon) appeals the sentence imposed following his

guilty plea conviction for illegal reentry into the United States. He contends

that the sentence is greater than necessary to achieve the sentencing goals of 18

U.S.C. § 3553(a); that the guidelines sentencing range was too severe given that

it was based, in part, on a 12-level enhancement that did not take into account

the temporal remoteness of the prior conviction that triggered the enhancement;

and that the Guidelines failed to take into account his personal circumstances,

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2011

Lyle W. Cayce

Clerk

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.

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No. 10-51128

including the fact that he had lived in this country for a long time and that he

struggles with alcoholism. Ramon asserts that the offense of illegal reentry is

not a crime of violence, did not pose a danger to others, is not evil in itself, and

is merely “an international trespass.”

Ramon argues that the substantive reasonableness of his sentence should

be reviewed for an abuse of discretion. He does so, however, only to preserve the

issue for further review in light of a circuit split on the issue of the standard of

review. He concedes that, under the law of this circuit, review is limited to plain

error because there was no objection in the district court that the 36-month

sentence was substantively unreasonable. See United States v. Whitelaw, 580

F.3d 256, 259-60 (5th Cir. 2009). To show plain error, the appellant must show

a forfeited error that is clear or obvious and that affects his substantial rights. 

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes

such a showing, this court has the discretion to correct the error but only if it

seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.

In a series of unpublished opinions, this court has rejected the argument

that the staleness of a defendant’s prior conviction renders his within-range

sentence unreasonable. See United States v. Gonzalez-Valencia, 401 F. App’x

888, 888-89 (5th Cir. 2010); United States v. Ortiz-Arriaga, 355 F. App’x 849,

849-50 (5th Cir. 2009), cert. denied, 130 S. Ct. 2133 (2010); United States v.

Gonzales-Torres, 288 F. App’x 927, 928-29 (5th Cir. 2008). This court has also

rejected the argument that a guidelines sentence for illegal reentry is

unreasonable because it is a mere trespass offense. See United States v. AguirreVilla, 460 F.3d 681, 683 (5th Cir.2006). The district court considered Ramon’s

argument for a sentence at the low end of the sentencing guidelines range. 

Expressing concern over Ramon’s long criminal history and his use of, inter alia,

multiple aliases and birth dates, the district court ultimately refused to sentence

him to the low end of the advisory guidelines range. Ramon’s mere

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disagreement with the sentence does not suffice to rebut the presumption of

reasonableness that attaches to a sentence within the advisory guidelines range. 

Cf. United States v. Gomez-Herrera, 523 F.3d 554, 565–66 (5th Cir.2008). 

Ramon has shown no error, plain or otherwise, by the district court. See Puckett,

129 S. Ct. at 1429.

AFFIRMED.

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