United States v. Carlos Sotelo-Ramirez

583 F. App'x 342

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 21, 2014
• Docket: 14-10502
• Status: Unpublished

Opinion

PER CURIAM: *

Carlos Sotelo-Ramirez pleaded guilty of having been found unlawfully in the United States following deportation and was sentenced to 36 months in prison and three years of supervised release. The district court indicated that the sentence, which was above the advisory guideline range of 18 to 24 months, was a variance under 18 U.S.C. § 3553(a).

In his sole issue on appeal, Sotelo-Ra-mirez does not question the substantive reasonableness of the sentence but contends it is proeedurally unreasonable because the district court misinterpreted U.S.S.G. §§ 4A1.3 and 5K2.0 in determining that an above-guideline sentence was warranted. To the extent that Sotelo-Ramirez challenges the sentence as an upward departure under the Guidelines, his argument is without merit. The court did not impose a departure but instead specifically stated that the sentence constituted a variance in light of the § 3553(a) factors.

Sotelo-Ramirez contends that although the district court cited the § 3553(a) factors, it was influenced by an erroneous departure standard regarding underrepre-sentation of criminal history. Sotelo-Ra-mirez maintains that courts must consider and correctly apply the guidelines, including the departure provisions, before imposing a variance under § 3553(a). The case on which he relies, however, says nothing about consideration of the guidelines-departure provisions in relation to imposing a variance or non-guideline sentence. See United States v. Gutierrez-Hernandez, 581 F.3d 251, 256 (5th Cir.2009) (“Without the correct guideline range, the court varies from the wrong point.” (emphasis added)). The record demonstrates that the sentence was an upward variance from the guideline range based on the factors set forth in § 3553(a), as thoroughly articulated by the district court.

Sotelo-Ramirez has not shown any error in the determination that an above-guide line sentence was warranted. Accordingly, the judgment of sentence is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.