United States of America v. Alberto Ramirez-Ortega

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 9, 2013
Decided December 12, 2013
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1286
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
ALBERTO RAMIREZ‐ORTEGA,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 12 CR 286
Charles P. Kocoras,
Judge.
O R D E R
Alberto Ramirez‐Ortega contends that the district court failed to address his
argument in mitigation that the federal government’s three‐year delay in bringing
charges deprived him of the opportunity to serve his federal and state sentences
concurrently. We affirm.
Ramirez‐Ortega, a Mexican citizen, unlawfully entered the United States in 1994
when he was 13 years old. He first ran into trouble with the law at 17, and by 21 he had
been convicted of attempted residential burglary, criminal damage to property, and
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 13‐1286 Page 2
burglary, and also had racked up six other arrests. After his burglary conviction, he was
removed to Mexico. He unlawfully returned to the United States within a year and was
promptly arrested for cannabis possession. Over the next five years, Ramirez‐Ortega
continued his criminal activities and in 2009 was arrested for armed robbery. While he
was being held on that charge, immigration authorities learned of his presence in the
country. Soon afterward, he was convicted of the armed‐robbery charge, in addition to
a second armed‐robbery charge brought while he was in custody, and he began serving
these state sentences concurrently. But not until three years later, in 2012, was
Ramirez‐Ortega charged with unauthorized presence in the United States after removal,
see 8 U.S.C. § 1326(a); he pleaded guilty to that charge.
Ramirez‐Ortega sought a below‐guidelines sentence to account for the three‐year
delay in bringing charges under § 1326(a). In his sentencing memorandum and at his
hearing, Ramirez‐Ortega asserted that if he had been charged with unlawful reentry
when he was arrested in 2009 for armed robbery, the district court could have ordered
him to serve his state and federal sentences concurrently under U.S.S.G. § 5G1.3. The
government sought a sentence at the high‐end of the guidelines range based on his
extensive criminal history.
The district court sentenced Ramirez‐Ortega to 96 months, the top of the
guidelines range. The court said nothing about his argument regarding concurrent
sentences, but justified its ruling by denouncing his violent criminal behavior upon
entering this county. The court explained that this case, unlike any other illegal reentry
case the court had heard before, warranted a top‐of‐the‐guidelines sentence.
On appeal Ramirez‐Ortega contends that the district court failed to adequately
address his mitigation argument that the government’s delay in charging him
prevented him from serving his federal sentence concurrently with his state sentence.
He relies primarily on Villegas‐Miranda, 579 F.3d 798, 800 (7th Cir. 2009), in which we
vacated the defendant’s sentence because the district court failed to address his
principal argument that he lost the opportunity to serve his state and federal sentences
concurrently due to the government’s purported delay in bringing a federal charge
against him. But the district court’s statements in this case reflect that it implicitly
considered Ramirez‐Ortega’s challenge and deemed his conduct too reprehensible to
warrant mitigation. Although the court did not specifically refer to the mitigation
argument, the court need not be explicit where “anyone acquainted with the facts
would have known without being told why the judge had not accepted the argument.”
United States v. Cunningham, 429 F.3d 673, 670 (7th Cir. 2005). The court here brushed

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No. 13‐1286 Page 3
aside the attorney’s argument, characterizing Ramirez‐Ortega as “a danger to the
community,” “a menace to society,” and “a violent person,” adding that Ramirez‐
Ortega’s extensive criminal history “washed away every ounce of mercy and
consideration” he would otherwise have been given. Unlike Villegas‐Miranda, where the
court passed over in silence the defendant’s argument for credit for time served in state
prison, the district court’s discussion here showed that it had considered Ramirez‐
Ortega’s argument and provided a basis for rejecting it. “[A]s long as the sentencing
court considers the argument[] made in mitigation, even if implicitly and imprecisely,
the sentence imposed will be found reasonable.” United States v. Spiller, 732 F.3d 767,
769 (7th Cir. 2013) (citation omitted).
AFFIRMED.

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