Case: 17-20162 Document: 00514349492 Page: 1 Date Filed: 02/15/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 17-20162 United States Court of Appeals Summary Calendar Fifth Circuit FILED February 15, 2018 UNITED STATES OF AMERICA, Lyle W. Cayce Clerk Plaintiff - Appellee v. NELSON JAVIER MELGAR-RAMOS, also known as Nelson Melgar Ramos, also known as Nelson Javier Melgar Ramos, also known as Nelson Melgar, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:16-CR-377-1 Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM:* Nelson Melgar-Ramos pleaded guilty to illegal reentry. The Presentence Report, using the 2014 version of the Sentencing Guidelines which covers the period when Melgar-Ramos committed the immigration offense, calculated a total offense level of 10 and criminal history category of IV. That resulted in an advisory range of 15-21 months’ imprisonment. The PSR noted that an upward departure might be warranted due to underrepresented criminal * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 17-20162 Document: 00514349492 Page: 2 Date Filed: 02/15/2018 No. 17-20162 history because this was Melgar-Ramos’s fourth felony and he had a prior encounter with immigration authorities that did not receive any criminal history points. At the hearing, the district court imposed an upward variance of 36 months. As justification for that decision, the court identified the defendant’s “grossly understated” criminal history. It then chronicled all of those prior offenses, which include child endangerment, twice driving with a revoked license, twice possessing cocaine, driving while intoxicated, and injury to a child. The court noted details of the recent injury to a child offense, which involved Melgar-Ramos on two separate occasions putting his hand inside the shirt of a sleeping 11-year-old female who was spending the night with his children. The district court also detailed how little time Melgar-Ramos had spent in custody for these crimes. It ended the recitation of criminal history by noting “other criminal conduct, of course, was that illegal reentry, of which no [criminal history] points were assessed.” The court also observed that a “criminal history category of not less than V is more representative of this defendant.” Melgar-Ramos alleges numerous errors that he contends render the sentence substantively unreasonable. His first focuses on that last comment about criminal history category V, pointing out that elevating his score to that level would have only resulted in a range of 21 to 27 months, below the sentence imposed. This ignores, however, that the court noted a category “of not less than V.” More fundamentally, the district court made clear that it was imposing a variance rather than a departure under the Guidelines. See generally United States v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (explaining the difference between a variance and Guidelines departure). A variance need not be tied to a particular ...
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