IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-10244

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

TOMAS RAMIREZ-HERNANDEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 5:09-CR-72-1

Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:

*

Tomas Ramirez-Hernandez appeals the sentence imposed in March 2010

following his guilty plea conviction for illegal reentry following deportation in

violation of 8 U.S.C. § 1326. He argues that the 70-month sentence imposed

(followed by three years’ supervised release), an upward variance from the

recommended guidelines range of 10 to 16 months, is substantively

unreasonable. Where the appellant has preserved error, sentences, whether

inside or outside the advisory guidelines range, are reviewed under an abuse of

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2010

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. 10-10244

discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). While it may

be questionable whether Ramirez-Hernandez properly preserved error on the

specific objections raised on appeal, assuming arguendo that his umbrella

objection to the sentence’s asserted substantive unreasonableness was sufficient

to preserve error, we apply the abuse of discretion standard.

Ramirez-Hernandez argues that the district court failed to consider that

his early criminal history was related to his drug addiction and that he had a

“change in lifestyle” since contracting HIV and overcoming his drug addiction.

He states that he has not committed a crime other than illegal reentry since

1994. He notes that although he has six prior deportations, three of those

resulted from illegal reentry convictions that were already counted by the

presentence report. He also notes that five of the six deportations took place

before 1995 and that he has only reentered the country twice since 1995, most

recently in June 2008.

While using the Sentencing Guidelines range as “the starting point and

initial benchmark” for sentencing, the district court has the discretion to select

a non-Guideline sentence after considering the sentencing factors set out in 18

U.S.C. § 3553(a). Gall v. United States, 552 U.S. 38, 51 (2007). In selecting a

non-Guideline sentence, the district court may, in its discretion, give additional

weight to factors already included in calculating the advisory Guidelines range,

“since to do otherwise would essentially render the Guidelines mandatory.”

United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008). On review for

abuse of discretion, “[a] non-Guideline sentence unreasonably fails to reflect the

statutory sentencing factors where it (1) does not account for a factor that should

have received significant weight, (2) gives significant weight to an irrelevant or

improper factor, or (3) represents a clear error of judgment in balancing the

sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).

The district court’s oral and written reasons reflect that the court considered the

Guidelines and the 18 U.S.C. § 3553(a) factors, including the nature and

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No. 10-10244

circumstances of the offense of conviction, Ramirez-Hernandez’s history and

characteristics, the need to promote respect for the law, the need for the

sentence to provide adequate deterrence, and the need to protect the public from

further criminal conduct. While Ramirez-Hernandez argues that his criminal

history was given improper weight in light of his lifestyle changes since

contracting HIV, it is clear that even within the “criminal history” factor, the

district court was also concerned by Ramirez-Hernandez’s multiple convictions

for illegal entry, which continued despite his lifestyle change. Furthermore, the

district court relied heavily on the factors of providing deterrence and promoting

respect for the law in reaching its sentence determination, particularly

emphasizing the fact that Ramirez-Hernandez’s prior (September 1999) 70-

month sentence for illegal reentry did not deter him from again illegally

reentering the country.

While the 70-month sentence is significantly greater than the advisory

Guidelines range of 10-16 months in this case, a mathematical calculation of

percentage deviation does not dictate the substantive reasonableness of a

sentence. United States v. Key, 599 F.3d 469, 476 n.1 (5th Cir. 2010) Instead,

the sentencing court “must consider the extent of the deviation and ensure that

the justification is sufficiently compelling to support the degree of the variance.”

Gall, 552 U.S. at 50. The extent of the variance in this case is sufficiently

supported in the record, particularly in light of Ramirez-Hernandez’s prior 70-

month sentence for illegal reentry.

In sum, the district court did not abuse its discretion. The sentence

imposed “was reasonable under the totality of the relevant statutory factors.”

United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008); see also United

States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008). RamirezHernandez’s sentence is

AFFIRMED.

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