United States Court of Appeals

Fifth Circuit

FILED

August 20, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40968

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

OSCAR SANCHEZ-RAMIREZ

also known as Omar Ramirez-Rodriguez

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

Oscar Sanchez-Ramirez (“Sanchez”) appeals his post-Booker, nonGuideline sentence as unreasonable. We AFFIRM.

I.

Sanchez was charged by indictment with one count of conspiring to

transport illegal aliens and five counts of aiding and abetting in the

transportation of the illegal aliens. He pleaded guilty to all counts without the

benefit of a plea agreement.

The presentence report (“PSR”) described the offense as follows. On the

morning of August 16, 2005, a dehydrated Evelyn Yesenia Alfaro-Contreras
No. 06-40968

2

(“Alfaro”) advised a ranch hand near Sarita, Texas, that a juvenile boy had died

and that she and the boy had been left behind by a large number of illegal aliens.

Immigration authorities discovered the body of a 13-year-old boy, identified as

E.E., who had died of heat stroke. Twenty illegal aliens including Sanchez were

apprehended. One alien, a diabetic with heart problems, had not taken her

medicine for two days, and she had to be sent by ambulance to a hospital for

treatment. 

Four material witnesses stated to immigration officials thatthey had paid

a smuggling fee, and they identified Sanchez and an individual known as “El

Tio” as the guides. They stated that Sanchez was taking orders from El Tio and

that he was verbally abusive to all the aliens and physically abusive to those

who could not keep up. The aliens reported that El Tio shared his food and

water only with Sanchez and that they refused to share with the other aliens.

At least one alien stated that Sanchez had participated in the decision to leave

E.E. and Alfaro behind. Sanchez originally stated that he too was going to pay

to be transported into the United States, but he later admitted that he did not

have the money and therefore was providing his assistance to El Tio in lieu of

paying the smuggling fee. Furthermore, according to Sanchez’s counsel’s

statements at rearraignment, Sanchez was training to become an alien smuggler

like El Tio.

The PSR assessed a base offense level of 26: a base of 12, a three-level

enhancement for the number of aliens, a three-level enhancement for reckless

endangerment, and an eight-level enhancement because an alien died. The PSR

further imposed a two-level vulnerable-victim enhancement. Following a threelevel reduction for acceptance of responsibility, the total offense level was 25.

This, combined with Sanchez’s criminal history category of I, resulted in an

advisory Guideline range of 57-71 months. The PSR suggested that an upward

departure might be warranted based on the number of aliens that were placed
No. 06-40968

1 The district court indicated in its statement of reasons that it was imposing a sentence

“outside the advisory sentencing guideline system.”

2 United States v. Booker, 543 U.S. 220 (2005).

3 Those factors include:

(1) the nature and circumstances of the offense and the history

and characteristics of the defendant;

3

at a substantial risk of death or serious bodily injury or based on a finding that

Sanchez’s conduct “was unusually heinous, cruel, brutal, or degrading to the

victim.”

At sentencing, the district court lowered the Guideline range to 46-57

months after sustaining a defense objection to the vulnerable-victim

enhancement. Nevertheless, the district court noted: “These people were

treated cruelly and unbelievable [sic]. And I think they’re vulnerable people,

though they might not be considered so in the guidelines.” After hearing

arguments from the parties, the district court deviated upward to impose a nonGuideline1

sentence of 80 months in prison, a five-year term of supervised

release, a special assessment, and restitution.

Sanchez filed a timely notice of appeal. On appeal, Sanchez argues that

his sentence is unreasonable.

II.

We review the district court’s application of the Sentencing Guidelines de

novo. United States v. Smith, 440 F.3d 704, 706 (5th Cir. 2006). We will not

overturn factual findings relevant to sentencing unless they are clearly

erroneous. United States v. Creech, 408 F.3d 264, 270 n.2 (5th Cir. 2005). 

Post-Booker,

2 we review a sentence for “unreasonableness.” Smith, 440

F.3d at 706 (quoting UnitedStates v. Booker, 543 U.S. 220, 261 (2005) (alteration

omitted)). Our reasonableness inquiry is guided by the sentencing

considerations set forth in 18 U.S.C. § 3553(a). Id.3 When a district court
No. 06-40968

(2) the need for the sentence imposed-

(A) to reflect the seriousness of the offense, to promote

respect for the law, and to provide just punishment for the

offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the

defendant; and

(D) to provide the defendant with needed educational or

vocational training, medical care, or other correctional

treatment in the most effective manner; ...

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of

similar conduct; ....

18 U.S.C. § 3553(a) (2006).

4

imposes a non-Guideline sentence, “we conduct our reasonableness review

through an abuse-of-discretion lens, paying particular attention to the specific

reasons given for deviating from the Guidelines.” United States v. Armendariz,

451 F.3d 352, 358 (5th Cir. 2006). “The farther a sentence varies from the

applicable Guideline sentence, the more compelling the justification based on

factors in section 3553(a) must be.” Smith, 440 F.3d at 707 (internal quotation

marks and citation omitted). 

“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.” Id. at 708. We have held that a factor already accounted for

in the advisory Guideline range is an improper factor to consider for a

non-Guideline sentence. United States v. Walters, 490 F.3d 371, 374 (5th Cir.

2007), revised, No. 05-51634 (5th Cir. Aug. 10, 2007); UnitedStates v.Perrin, 478

F.3d 672, 678 (5th Cir. 2007); United States v. Goldsmith, 192 F. App’x 261, 267

(5th Cir. 2006) (unpublished). The purpose of such a rule must be to avoid

double-counting; otherwise, restricting the sentence and the sentencing judge
No. 06-40968

4 The district court did not err, as Sanchez contends, by failing to consider § 3553(a)(6),

which requires courts to consider “the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar conduct.” As he did

before the district court, Sanchez emphasizes that another district court did not upwardly

depart in a different case with substantially similar facts. See United States v. GarciaGuerrero, 313 F.3d 892, 897 (5th Cir. 2002) (for financial gain, defendant led aliens in the

middle of summer with inadequate supplies, and one alien died of probable heat stroke).

Citing one case in which a lower sentence was imposed clearly cannot establish an

unwarranted disparity under 18 U.S.C. § 3553(a)(6). 

5

renders the Guidelines mandatory, which violates the constitutional holding of

Booker. See 543 U.S. at 245.

Sanchez argues that the district court relied on improper factors when it

deviated upwards from the Guideline range to impose a non-Guideline sentence.

According to Sanchez, the district court deviated upwards due to the number of

aliens that Sanchez recklessly endangered, the death that occurred, and the

vulnerability of the victims. Sanchez contends that all of these factors are

already accounted for by the Sentencing Guidelines and are therefore improper

factors.

Here, the district court deviated from the advisory Guideline range of 46-

57 months and sentenced Sanchez to 80 months in prison, based on the nature

and circumstances ofthe offense,the history and characteristics of Sanchez, and

the need to impose a sentence that reflected the seriousness of the offense. See

18 U.S.C. § 3553(a).

4

In imposing a non-Guideline sentence, the district court

did not double-count based on factors already considered by the advisory

Guidelines range; instead, the district court deviated upwards because it felt

that the facts in this case were more egregious than the normal alien-smuggling

case. Cf. United States v. Rajwani, 476 F.3d 243, 250 (5th Cir. 2007), modified

on other grounds, 479 F.3d 904 (5th Cir. 2007) (departure permitted because

aspects of victims’ vulnerability were notfactored into the Guideline range). The
No. 06-40968

5 Sanchez argues that his conduct was not “unusually heinous, cruel, brutal, or

degrading to the victim” to meet the standard for extreme conduct under U.S.S.G. § 5K2.8.

His argument is meritless because the district court did not depart based on § 5K2.8. 

6 Sanchez contends that the district court erred when it considered evidence showing

that Sanchez had refused to share food and water with the aliens. Sanchez asserts that the

district court misstated his ability to share food and water and to use the cell phone to seek

help, but he presented no evidence to the district court in support of his allegations. In the

absence of evidence to the contrary, the district court was entitled to rely on the facts stated

in the PSR. See United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir. 2005), cert.

denied, 126 S. Ct. 1020 (2006). Therefore, the district court’s findings were not clearly

erroneous. See id.; Creech, 408 F.3d at 270 n.2.

6

district court found that the facts were “heinous”5 and that the defendant’s

actions were “like torturing these people and leaving them to die” while refusing

to share food and water.6 The district court acknowledged that the Guidelines

imposed an enhancement for reckless endangerment, but noted that Sanchez’s

actions had helped to place over twenty people in serious danger. Furthermore,

while the Guidelines imposed an enhancement for the death of E.E., the district

court found the facts surrounding his death extraordinary. The district court

simply did not believe Sanchez’s contention that he had not known that E.E. was

dying. In fact, the district court found that Sanchez had “slapped” E.E. and

called him names despite E.E.’s obvious illness. Additionally, because Sanchez’s

motivation had been to learn the alien smuggling business, the district court

concluded that Sanchez had failed to help the aliens because of concern about his

new job and the money he hoped to make. Finally, the district court did not

double-count the vulnerable victim enhancement, given that it rejected the

enhancement when it calculated the Guideline range. 

Based on these characteristics of Sanchez and on the egregious

circumstances of the offense, we conclude that the sentence is not unreasonable,

and accordingly, the district court did not abuse its discretion either in its

decision to deviate upwards or in the degree of its deviation. See Armendariz,

451 F.3d at 358.
No. 06-40968

7

III.

For the foregoing reasons, Sanchez’s sentence is

AFFIRMED.