USA v. Celestino Ramirez-Hernandez, No. 10-13181 (11th Cir. 2011)
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-13181 MAY 10, 2011 Non-Argument Calendar JOHN LEY ________________________ CLERK D.C. Docket No. 1:10-cr-20026-DLG-1 UNITED STATES OF AMERICA, lllllllllllllllllllll Plaintiff-Appellee, versus CELESTINO RAMIREZ-HERNANDEZ, a.k.a. Leonel Lopez, lllllllllllllllllllll Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (May 10, 2011) Before PRYOR, MARTIN and ANDERSON, Circuit Judges. PER CURIAM: Celestino Ramirez-Hernandez appeals his sentence of 70 months of imprisonment for reentering the United States illegally. 8 U.S.C. § 1326(a), (b)(2). Ramirez-Hernandez argues that his prior conviction for statutory rape did not qualify as a crime of violence and his sentence is unreasonable. We affirm. The district court correctly determined that Ramirez-Hernandez s prior conviction in a Georgia court for statutory rape constituted a crime of violence. A defendant is subject to a 16-point increase in his offense level if he previously has been deported after being convicted of a crime of violence. United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2009). Statutory rape is considered a crime of violence under section 2L1.2, id. § 2L1.2 cmt. n.1(B)(iii), and Ramirez-Hernadez admitted at sentencing that his prior conviction was equivalent to the generic offense listed in the Guidelines. Ramirez-Hernandez argues that his crime did not involve the type of physical force required to qualify as a crime of violence, but [i]t is well settled that a felony conviction for an enumerated offense qualifies as a crime of violence under § 2L1.2, whether or not the use of physical force is an element of the crime. United States v. Palomino Garcia, 606 F.3d 1317, 1327 (11th Cir. 2010); see also U.S.S.G. App. C, amend. 722 (Enumerated offenses are always classified as crimes of violence, 2 regardless of whether the prior offense expressly has as an element the use, attempted use, or threatened use of physical force against the person of another. ). Ramirez-Hernandez s sentence is both procedurally and substantively reasonable. The district court correctly calculated Ramirez-Hernandez s advisory guideline range and imposed a sentence at the bottom of the guideline range after considering the presentence report which contains the advisory guidelines[] and the statutory factors. Ramirez-Hernandez argues that the district court failed to take into account his own unique circumstances, but the district court stated that it had considered Ramirez-Hernandez s statements in fashioning an appropriate sentence. The district court reasonably determined that a sentence of 70 months of imprisonment was required to punish Ramirez-Hernandez for reentering the United States illegally and to deter similar future conduct. The district court did not abuse its discretion. Ramirez-Hernandez s sentence is AFFIRMED. 3
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