United States v. Jose Cortes-Ramirez

Court Case Details
Court Case Opinion

Case: 13-40418 Document: 00512808096 Page: 1 Date Filed: 10/20/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40418

Summary Calendar

United States Court of Appeals

Fifth Circuit

FILED

October 20, 2014

UNITED STATES OF AMERICA,

Lyle W. Cayce

Clerk

Plaintiff-Appellee

v.

JOSE ALBERTO CORTES-RAMIREZ, also known as Jose A. Cortes,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-2064-1

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:

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Jose Alberto Cortes-Ramirez pleaded guilty to one charge of illegal

reentry into the United States and was sentenced to serve 46 months in prison.
Now, he argues that the district court erred by concluding that his prior
conviction for aggravated battery under Louisiana Revised Statutes § 14:34
was a crime of violence (COV) pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Pursuant to 5

C

.

R.

47.5, the court has determined that this opinion should not

*

TH

IR

be published and is not precedent except under the limited circumstances set forth in 5

TH

C

.

R. 47.5.4.

IR

Case: 13-40418 Document: 00512808096 Page: 2 Date Filed: 10/20/2014

No. 13-40418

Appellate courts review sentences for reasonableness by engaging in a

bifurcated analysis. Gall v. United States, 552 U.S. 38, 49-51 (2007); United
States v. Delgado-Martinez
, 564 F.3d 750, 752 (5th Cir. 2009). First, the
reviewing court ensures that the sentencing court committed no significant
procedural error, including improperly calculating the guidelines range. Gall,
552 U.S. at 51. If there is no such error, the appellate court reviews the
substantive reasonableness of the sentence under a deferential abuse of
discretion standard, taking into account the totality of the circumstances.
Gall, 552 U.S. at 51; United States v. Cisneros-Gutierrez, 517 F.3d 751, 764
(5th Cir. 2008). The district court’s characterization of a prior offense as a
crime of violence is a question of law that this court reviews de novo. United
States v. Izaguirre-Flores
, 405 F.3d 270, 272 (5th Cir. 2005).

Our review of pertinent jurisprudence and the record shows no error in

connection with the district court’s conclusion that Cortes-Ramirez’s § 14:34
conviction was a COV for sentencing purposes. The record contains the
charging instrument for Cortes-Ramirez’s § 14:34 offense. This document
shows that this offense involved a “metal pipe” and thus excludes the
possibility that Cortes-Ramirez committed the aggravated battery with poison
or other noxious substance. Accordingly, the district court’s conclusion that
this offense was a COV was proper. See United States v. Herrera-Alvarez, 753
F.3d 132, 141-42 (5th Cir. 2014).

AFFIRMED.

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