United States v. Ramirez-Viruete
United States v. Ramirez-Viruete
Opinion of the Court
This matter is before us on remand from the Supreme Court for reconsideration in light of its recent opinion in United States v. Booker.
I. BACKGROUND
Ramirez-Viruete pleaded guilty to reentering the United States illegally following removal, in violation of 8 U.S.C. § 1326, an offense that is punishable by up to two years imprisonment. At his sentencing— which occurred prior to Booker — the district court increased Ramirez-Viruete’s offense level under the then-mandatory Sentencing Guidelines by eight levels, because he had a prior aggravated felony conviction. The court then sentenced RamirezViruete to 30 months imprisonment. Ramirez-Viruete appealed his sentence, arguing that it violated the Fifth Amendment’s Due Process Clause. After we affirmed in an unpublished opinion,
II. DISCUSSION
A. Standard of Review
Ramirez-Viruete raised his Booker claim for the first time in his petition for a writ of certiorari. We will therefore review his Booker claim only in the presence of “extraordinary circumstances.”
Under plain error review, we will not remand for resentencing unless there is “(1) error, (2) that is plain, and (3) that affects substantial rights.”
B. Merits
In his supplemental letter brief, Ramirezr-Viruete concedes that “Mares appears to foreclose [his] plain-error claim in this circuit.” Specifically, Ramirez-Viruete is unable to point to any indication in the record that there is a probability that the sentencing judge would have sentenced him differently under an advisory Guidelines scheme. Instead, he preserves a challenge to the standard of review we adopted in Mares, arguing that in Mares we got it wrong and the plain error standard employed by other courts (the Sixth Circuit, for example
III. CONCLUSION
As there exist no extraordinary circumstances or other grounds for relief, Ramirez-Viruete’s sentence is affirmed. We therefore need not address the government’s pending Motion to Reinstate Prior Affirmance of Appellant’s Conviction and Sentence in Lieu of Filing Supplemental Booker Brief.
AFFIRMED; motion DENIED as unnecessary.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
. 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
. United States v. Ramirez-Viruete, 111 Fed. Appx. 320 (5th Cir. 2004).
. Martinez-Alfaro v. United States, 543 U.S. 1183, 125 S.Ct. 1422, 161 L.Ed.2d 182 (2005).
. United States v. Taylor, 409 F.3d 675, 676 (5th Cir. 2005).
. Id.
. United. States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002).
. Id.
. United States v. Mares, 402 F.3d 511, 521 (5th Cir. 2005).
. Id. (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
. Id. (quoting United States v. Dominguez Benitez, 542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004)).
. Id.
. See, e.g., United States v. Barnett, 398 F.3d 516 (6th Cir. 2005).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.