*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

August 17, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 10-2117

v. (D. New Mexico)

ALEJANDRO RAMOS-LOPEZ,

Defendant - Appellant.

(D.C. No. 2:03-CR-02239-BB-3)

ORDER AND JUDGMENT*

Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

In 2004, defendant and appellant, Alejandro Ramos-Lopez, pled guilty to

two counts of transporting illegal aliens and aiding and abetting, under 8 U.S.C.

§ 1324(a)(1)(A)(ii), (a)(1)(B)(I) and (a)(1)(A)(v)(II). When he failed to appear,

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Apparently, an arrest for driving under the influence led to the capture of

Mr. Ramos-Lopez.

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in violation of the conditions of his pre-trial release, an arrest warrant was issued. 

Mr. Ramos-Lopez remained in warrant status until he was apprehended in August

2009.1

 He was subsequently sentenced on April 30, 2010, to thirty months’

imprisonment, followed by two years of supervised release. Arguing that the

district court should have sua sponte sought a sentence below the minimum

advisory sentence under the United States Guideline Commission, Guidelines

Manual (“USSG”), Mr. Ramos-Lopez appeals. We affirm.

BACKGROUND

As indicated, in November 2003, Mr. Ramos-Lopez was indicted, along

with some co-defendants, on two counts of transporting illegal aliens and aiding

and abetting. While on pre-trial supervised release, Mr. Ramos-Lopez absconded

in April 2004, and was eventually arrested in May 2009 on the outstanding

warrant.

In preparation for sentencing, the United States Probation office prepared a

presentence report (“PSR”), which recommended a sentence under the advisory

sentencing guidelines. The PSR calculated a total offense level of 17 for

Mr. Ramos-Lopez which, with a criminal history category of III, yielded an

advisory guidelines range of 30 to 37 months’ imprisonment.

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Mr. Ramos-Lopez did not file any objections to the PSR, nor did he file a

sentencing memorandum. At his sentencing hearing on April 30, 2010,

Mr. Ramos-Lopez’s counsel specifically denied having any challenges to the

factual statements or guidelines calculations and proposals in the PSR. When

asked if Mr. Ramos-Lopez or his counsel would like to address the court prior to

sentencing, Mr. Ramos-Lopez’s counsel explained that Mr. Ramos-Lopez had

absconded to help his wife care for her ill mother, that he (Mr. Ramos-Lopez) 

knew what he had done was wrong, and that “he knows he’s got to pay a penalty.” 

Tr. of Sentencing Hr’g at 4, R. Vol. 3 at 8. After conceding that the guideline

range of 30 to 37 months was correctly calculated, defense counsel stated, “And

we’re just requesting the low end of the range.” Id.

After explaining that it had reviewed the PSR, the guideline calculations

and the sentencing factors listed in 18 U.S.C. § 3553(a), the district court

sentenced Mr. Ramos-Lopez to 30 months’ imprisonment (the low end of the

applicable guidelines range). This appeal followed.

DISCUSSION

We review a criminal defendant’s sentence for reasonableness, deferring to

the district court under the “familiar abuse-of-discretion standard of review.” 

Gall v. United States, 552 U.S. 38, 46 (2007). Reasonableness review has a

procedural and a substantive component. United States v. Alapizco-Valenzuela,

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546 F.3d 1208, 1214 (10th Cir. 2008). “We may not examine the weight a district

court assigns to various § 3553(a) factors, and its ultimate assessment of the

balance between them, as a legal conclusion to be reviewed de novo. Instead, we

must ‘give due deference to the district court’s decision that the § 3553(a) factors,

on a whole, justify the [sentence imposed].’” United States v. Smart, 518 F.3d

800, 807-08 (10th Cir.2008) (quoting Gall, 552 U.S. at 51)). A sentence imposed

within the properly calculated advisory guideline range is entitled to a rebuttable

presumption of reasonableness.

Mr. Ramos-Lopez’s argument is this: “Mr. Ramos-Lopez should have been

considered for a variance based on the § 3553(a) requirement that the sentence be

sufficient but not greater than necessary to achieve the statutory purpose of

punishment.” Appellant’s Br. at 5. He makes this argument despite his own

failure to ask for such a variance before the district court and despite his

counsel’s specific averment that a sentence at the low end of the guidelines range

would be acceptable and, implicitly, reasonable.

The government argues that Mr. Ramos-Lopez has “waived the arguments

for a lower sentence that he now seeks to raise for the first time in this appeal,

and this Court should summarily affirm the presumptively reasonable guideline

sentence imposed by the district court.” Appellee’s Br. at 4. We agree with the

government. Even were we to not find waiver, we would find Mr. RamosLopez’s sentence reasonable.

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Because “waiver is accomplished by intent, but forfeiture comes about

through neglect, . . . we have held that a party that has forfeited a right by failing

to make a proper objection may obtain relief for plain error; but a party that has

waived a right is not entitled to appellate relief.” United States v. CarrascoSalazar, 494 F.3d 1270, 1272 (10th Cir. 2007). It is clear in this case that

Mr. Ramos-Lopez waived any argument that he was entitled to a below-guideline

sentence. See United States v. Mancera-Perez, 505 F.3d 1054, 1057 (10th Cir.

2007) (“Because [defendant] did not argue for a shorter sentence in front of the

district court, and indeed conceded the appropriateness of his [low-end-of-theguidelines sentence], we believe this argument [for a shorter sentence] seeks to

assert invited error and is waived.”).

His argument that the district court should have sua sponte granted a

variance is of no assistance to him. We have acknowledged that while “[w]e may

consider an issue of waiver sua sponte, . . . we are not required to do so.” Id. at

1057 n.3. The same can be said about the district court.

In sum, we perceive no abuse of discretion in the district court’s implicit

decision not to grant a waiver, and in its decision to sentence Mr. Ramos-Lopez to

thirty months’ imprisonment.

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CONCLUSION

For the foregoing reasons, the decision of the district court is AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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