NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-1870

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UNITED STATES OF AMERICA

v.

FILIGONIO RAMOS-SIMANCAS,

a/k/a Jose Hernandez

Filigonio Ramos-Simancas, Appellant 

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Crim. No. 3-08-cr-00632-001 )

District Judge: Honorable Garrett E. Brown, Jr.

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Submitted Under Third Circuit L.A.R. 34.1(a)

May 13, 2010

Before: BARRY, WEIS and ROTH, Circuit Judges.

(Opinion Filed July 2, 2010)

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OPINION 

 

WEIS, Circuit Judge.

Defendant pled guilty to illegally re-entering the country after having been

deported for the commission of multiple narcotics offenses. See 8 U.S.C. § 1326. The

District Court sentenced him to 57 months’ imprisonment, the middle of the Guideline
2

range. Defendant now contends that his sentence was procedurally unreasonable because

the District Court failed to rule on his request for a variance. We will affirm the sentence

imposed.

In determining the Guideline range, the Court included a twelve-level

increase to the defendant’s base offense level because of three previous narcotics

convictions, the sentences for which were thirteen months or less. See U.S.S.G. §

2L1.2(b)(1)(B). Combining that enhancement with a three-level decrease for the

acceptance of responsibility resulted in an adjusted offense level of 17, which, when

applied to the defendant’s criminal history category of VI, culminated in a range of 51-63

months’ imprisonment.

The District Court reviewed the defendant’s mitigation claims in detail,

including his request for a variance on the basis that were he being sentenced in a border

state, he might have received a four-level decrease to the adjusted Guideline offense level

because of his willingness to participate in fast-track sentencing. In denying the variance

and finding the Guideline range to be reasonable, the Court acknowledged “[t]he need to

avoid unwarranted sentencing disparities among persons with similar records who have

been found guilty of similar conduct” and expressed its belief that the Guidelines help

achieve “uniformity as far as border courts [are concerned].” However, the Court was

unwilling to “compare people [in border states] that have circumstances [that the Court

was] not aware of with this defendant.”

The record thus reveals that the District Court, contrary to the defendant’s
3

assertion, ruled on the requested variance. The Court also gave “meaningful

consideration” to the factors in 18 U.S.C. § 3553, see United States v. Starnes, 583 F.3d

196, 215 (3d Cir. 2009) (a procedurally reasonable sentence “reflect[s] a district court’s

meaningful consideration of the factors set forth at . . . § 3553(a)” (quoting United States

v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007))), and adequately explained the reasons for

the defendant’s sentence. Because we are convinced that the District Court “committed

no significant procedural error in arriving at its [sentencing] decision,” see id., nor

imposed a substantively unreasonable term of imprisonment, we find no reversible error

in the defendant’s sentence. 

We further note that defendant contends that the District Court improperly

accepted his conviction under 8 U.S.C. § 1326(b)(2) where the commission of an

aggravated felony was neither admitted nor proven beyond a reasonable doubt. See

Apprendi v. New Jersey, 530 U.S. 466 (2000). Defendant candidly acknowledges that he

raises this point to preserve the issue should the Supreme Court modify its holding in

Almendarez-Torres v. United States, 523 U.S. 224 (1998). We recognize the defendant’s

preservation of the issue.

Accordingly, the Judgment of the District Court will be affirmed.