United States v. Ramos-Lira

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 21, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-11093
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO RAMOS-LIRA, also known as Fernando Ortiz-Duartes,
also known as Fernando Arto-Duran,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CR-87-ALL-C
--------------------
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Eduardo Ramos-Lira, also known as Fernando Ortiz-Duartes and
Fernando Arto-Duran, appeals the 24-month sentence imposed by the
district court after it revoked his supervised release.
He contends that the district court erred in failing to
explicitly or implicitly consider the factors set forth in 18
U.S.C. § 3553(a) and in failing to state its reasons for imposing
sentence pursuant to 18 U.S.C. § 3553(c). Because Ramos-Lira did

-- 1 of 3 --

No. 03-11093
-2-
not object to the district court’s alleged errors at the
revocation hearing, they are reviewed for plain error. See
United States v. Gonzalez, 250 F.3d 923, 930 (5th Cir. 2001).
The record in this case demonstrates that the district court
implicitly considered the 18 U.S.C. § 3553(a) factors when it
sentenced Ramos-Lira. The district court was informed of the
nature and circumstances of the original conviction, the instant
violations, the pending indictment, and Ramos-Lira’s criminal
history. In fact, the district judge who revoked Ramos-Lira’s
supervised release was the same judge who presided over the case
that formed the basis for his revocation. Further, the district
court was aware of Ramos-Lira’s mental difficulties as evidenced
by defense counsel’s statements at the revocation hearing. The
district court acknowledged the pertinent guideline policy
statements when it found the applicable violation grade and
criminal history category. The district court’s decision to
depart from the suggested guideline range of 12 to 18 months and
impose a 24-month sentence with no further supervised release
implies that it took into consideration Ramos-Lira’s recidivism
and the need to deter further criminal conduct. This court
presumes that the district court knew the applicable law and
there is no contrary indication in the record to suggest that it
did not at least implicitly consider the 18 U.S.C. § 3553(a)
factors. See Gonzalez, 250 F.3d at 930; United States v.

-- 2 of 3 --

No. 03-11093
-3-
Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000). Therefore,
Ramos-Lira has not demonstrated plain error.
The Government concedes, however, that the district court
did not state the reasons for Ramos-Lira’s sentence as required
by 18 U.S.C. § 3553(c). Nevertheless, assuming that the district
court’s failure to state the reasons for the sentence was a clear
and obvious error, Ramos-Lira has not shown that this error
affected his substantial rights or the fairness, integrity, or
public reputation of the judicial proceeding. See Gonzalez, 250
F.3d at 931; Izaguirre-Losoya, 219 F.3d at 441-42.
Accordingly, the district court’s judgment is AFFIRMED.

-- 3 of 3 --