IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51234

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ANTONIO RAMIREZ, also known as Jose Ramirez,

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-2256-1

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jose Antonio Ramirez pleaded guilty to illegal reentry after deportation

in violation of 8 U.S.C. § 1326 and was sentenced to 71 months of imprisonment

and three years of supervised release. Ramirez challenges the substantive

reasonableness of his sentence, arguing that his sentence is unreasonable

because it is greater than necessary to achieve the sentencing goals of 18 U.S.C.

§ 3553(a). He argues that the guidelines range overstated the seriousness of the

United States Court of Appeals

Fifth Circuit

F I L E D

August 19, 2013

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.

 Case: 12-51234 Document: 00512345993 Page: 1 Date Filed: 08/19/2013
No. 12-51234

offense, which was essentially a trespass, and failed to account for his benign

motive for reentering to be with his family.

Because Ramirez did not make any objections to his sentence or argue in

the district court that his sentence was unreasonable, his arguments are

reviewable only for plain error. See Puckett v. United States, 556 U.S. 129, 134-

35 (2009); United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007)

(requiring objection to substantive unreasonableness of sentence to preserve

error). To show plain error, the appellant must show a forfeited error that is

clear or obvious and that affects his substantial rights. Puckett, 556 U.S. at 135. 

If the appellant makes such a showing, we have the discretion to correct the

error but only if it seriously affects the fairness, integrity, or public reputation

of judicial proceedings. Id. at 135.

We have previously rejected the argument that illegal reentry is merely

a trespass offense that is treated too harshly under U.S.S.G. § 2L1.2. See United

States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006). The district court

heard the arguments of Ramirez’s counsel concerning his reasons for reentering

the United States before imposing a sentence within the advisory guidelines

range. The district court considered Ramirez’s personal history and

characteristics and the other statutory sentencing factors in § 3553(a), in

particular Ramirez’s criminal history of robbery offenses, prior to imposing a

sentence within the Guidelines. The within-guidelines sentence is entitled to a

presumption of reasonableness. See Rita v. United States, 551 U.S. 338, 347

(2007). Ramirez’s argument concerning his benign motive for reentry to be with

his family fails to rebut that presumption. See United States v. Gomez-Herrera,

523 F.3d 554, 565-66 (5th Cir. 2008). Ramirez has not shown that the district

court’s imposition of a within-guidelines sentence of 71 months constituted plain

error. See Peltier, 505 F.3d at 391-92. Accordingly, the judgment of the district

court is AFFIRMED.

2

 Case: 12-51234 Document: 00512345993 Page: 2 Date Filed: 08/19/2013