Summary Calendar UNITED STATES OF AMERICA v. Moises Ramirez-Jamaica

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40456
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
MOISES RAMIREZ-JAMAICA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1738-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Moises Ramirez-Jamaica (Ramirez) appeals his conviction and 46-month
sentence for illegal reentry after deportation.
Ramirez first argues that the district court failed to clearly apply the
sentencing factors of 18 U.S.C. § 3553(a) and failed to explain its reasons for the
sentence imposed. Because Ramirez failed to object on this basis below, we
review for plain error. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
United States Court of Appeals
Fifth Circuit
F I L E D
August 20, 2008
Charles R. Fulbruge III
Clerk

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Cir. 2007), cert. denied, 2008 WL 227315 (June 23, 2008) (No. 07-8978). Both the
Supreme Court and this court have held that, if a sentence is within a properly
calculated guidelines range, little explanation is required. See Rita v. United
States, 127 S. Ct. 2456, 2468-69 (2007); United States v. Mares, 402 F.3d 511,
519 (5th Cir. 2005). If the sentence is within a properly calculated guidelines
range, it also can be presumed that the sentencing court considered the § 3553
factors. See Rita, 127 S. Ct. at 2463-65. In the instant case, the district court’s
oral statements at sentencing and its written statement of reasons set out the
applicable guideline calculations and adopted the presentence investigation
report without change; we have held that the requirement that the district court
explain the reasons for the sentence imposed “is satisfied when the district court
indicates the applicable guideline range and how it is chosen.” United States v.
Hernandez, 457 F.3d 416, 424 (5th Cir. 2006). Therefore, Ramirez has not
shown that the district court committed plain error.
Ramirez also seeks to preserve for further review an argument that this
court’s precedent effectively reinstated a mandatory Guidelines scheme.
Because Ramirez did not raise this argument below, review is for plain error.
See United States v. Campos-Maldonado, __ F.3d __, No. 07-20715, 2008 WL
2357364 at *2 (5th Cir. 2008). As we did in Campos-Maldonado, we conclude
that this argument does not rise to the level of “reversible plain error.” Id.
Furthermore, Ramirez’s sentence, at the bottom of the correctly determined
guidelines range, is entitled to a presumption of reasonableness that Ramirez
has not overcome. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
Finally, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Ramirez
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the

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offense that must be found by a jury. This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 128 S. Ct. 872
(2008).
AFFIRMED.

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