IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31028

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE RICARDO RAMIREZ,

Defendant-Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:08-CR-108-12

Before REAVLEY, SMITH and PRADO, Circuit Judges.

PER CURIAM:*

Jose Ricardo Ramirez appeals the 360-month sentence imposed by the

district court following his guilty plea to a charge of conspiracy to distribute and

possess with the intent to distribute five or more kilograms of cocaine and 50 or

more kilograms of cocaine base. He argues that the district court imposed a

“substantively unreasonable 360-month sentence, 71 percent above the

guidelines advisory range upper limit and three times the mandatory minimum.” 

Because Ramirez did not object in the district court to the reasonableness of his

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 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. 10-31028

sentence and the alleged inadequacy of the district court’s reasons for the

sentence, review is for plain error. See United States v. Mondragon-Santiago,

564 F.3d 357, 361 (5th Cir. 2009); United States v. Peltier, 505 F.3d 389, 392-93

(5th Cir. 2007). To prevail, Ramirez must show a forfeited error that is clear or

obvious and that affects his substantial rights. See Puckett v. United States, 556

U.S. 129, 129 S. Ct. 1423, 1429 (2009). If he makes the above 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.

Ramirez first argues that the district court failed to properly articulate the

reasons for his sentence. When imposing an above-guidelines sentence, the

district court must articulate reasons for the sentence as they relate to that

particular defendant. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.

2005). The court’s reasons in support of the chosen sentence “should be

fact-specific and consistent with the sentencing factors enumerated in [18

U.S.C.] section § 3553(a).” United States v. Smith, 440 F.3d 704, 707 (5th Cir.

2006). The farther a sentence varies from the guidelines range, the more

compelling the justification based on the § 3553(a) factors must be. Id. The

court need not, however, “engage in robotic incantations that each statutory

factor has been considered.” Id. (internal quotation marks and citation omitted). 

In Ramirez’s case, the § 3553(a) factors cited by the district court in its

statement of reasons included the nature and circumstances of the offense, the

history and characteristics of the defendant, the seriousness of the offense, and

the need to provide just punishment. In addition to citing these factors, the

district court orally provided fact specific reasons for the variance. Accordingly,

we find no procedural error, plain or otherwise. See Mondragon-Santiago, 564

F.3d at 361.

As to the substantive reasonableness of the sentence, an appellate court

may not require “extraordinary circumstances” to justify a sentence outside the

Guidelines range. United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th

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Cir. 2008). Nevertheless, a non-guidelines sentence is unreasonable if 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. See Peltier, 505 F.3d at

392. 

Ramirez has not shown that the district court considered an irrelevant or

improper factor in determining his sentence. A sentencing court may consider

conduct that “the Guidelines offense level did not take into account” when

selecting a non-guidelines sentence. See, e.g., United States v. McElwee, 646

F.3d 328, 338 (5th Cir. 2011). Contrary to Ramirez’s contention otherwise, the

additional conduct cited by the district court was not already taken into account

in determining his guidelines range. Even if consideration of conduct for which

he has not been convicted was error, Ramirez has not demonstrated a

reasonable probability that he would have received a lesser sentence but for the

district court’s consideration of the other conduct. See United States v. Williams,

620 F.3d 483, 496 (5th Cir. 2010), cert. denied, 131 S. Ct. 1534 (2011). Ramirez’s

contention that the additional conduct was not supported by a preponderance of

the evidence also is without merit because the district court specifically found

that Ramirez’s additional conduct was supported by “reliable information”

contained in the PSR. Accordingly, we AFFIRM the judgment of the district

court. 

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