United States v. Ramirez , 613 F. App'x 711 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 29, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 14-6184
(D.C. No. 5:13-CR-00138-F-6)
ERLINDA RAMIREZ, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, TYMKOVICH, and MORITZ, Circuit Judges.
_________________________________
Erlinda Ramirez appeals her convictions for (1) conspiracy to distribute, and
conspiracy to possess with intent to distribute, controlled substances; (2) conspiracy to
launder money; and (3) aiding and abetting money laundering. Defense counsel filed an
Anders1 brief and moved to withdraw as counsel. Ramirez declined to file a pro se
*
After examining defense counsel’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case
is therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
1
After conscientious examination of a case, an attorney who concludes an
appeal would be “wholly frivolous” may “so advise the court and request permission
to withdraw” from representation. Anders v. State of Cal., 386 U.S. 738, 744 (1967).
response, and the government also declined to file a brief. We therefore base our decision
on defense counsel’s brief and our own review of the record.2
Erlinda Ramirez entered pleas of guilty to one count of conspiracy to distribute
marijuana, cocaine, and methamphetamine, and to possess those substances with intent to
distribute in violation of 21 U.S.C. §§ 841 and 846; one count of conspiracy to launder
money in violation of 18 U.S.C. §§ 1956(a)(1) and (h); and seven counts of aiding and
abetting money laundering in violation of 18 U.S.C. §§ 2 and 1956(a)(1)(B)(i). Based on
her two prior felony convictions for controlled substance offenses, the PSR classified
Ramirez as a career offender under U.S.S.G. § 4B1.1(b). As a result, the PSR increased
both the offense level and Ramirez’s criminal history category, yielding a Guidelines
range of 262 to 327 months in prison. Nevertheless, the district court imposed a 240-
month prison sentence.
Defense counsel first says Ramirez might challenge the classification of two
Oklahoma drug convictions as prior convictions for purposes of treating her as a career
If the court agrees, “after a full examination of all the proceedings,” that the appeal is
wholly frivolous, it may grant the motion to withdraw and dismiss the appeal. Id.
2
To satisfy our obligation to review the proceedings under Anders, we found it
necessary to sua sponte supplement the record with a transcript of Ramirez’s guilty plea
hearing, which defense counsel did not designate as part of the record. See United States
v. Delacruz-Soto, 414 F.3d 1158, 1161 (10th Cir. 2005) (explaining that counsel filing an
Anders brief “generally should ensure that copies of all possibly relevant transcripts are
included in the record on appeal”); see also 10th Cir. R. 10.1(A)(1). Additionally, defense
counsel has failed to provide any citations to the appellate record. See Delacruz-Soto, 414
F.3d at 1160 (explaining that Anders allows an attorney withdraw after, inter alia, filing a
brief that cites “those portions of the record that arguably support the appeal”). In the
future, such failures may result in denial of defense counsel’s Anders brief and motion to
withdraw. See id. at 1161.
2
offender under U.S.S.G. § 4B1.1(a). Because Ramirez did not raise this issue below, we
review for plain error. United States v. Ferrel, 603 F.3d 758, 763 (10th Cir. 2010).
According to the PSR, Ramirez has a 2009 conviction for possessing a controlled
substance with intent to distribute in violation of Okla. Stat. Ann. Tit. 63, § 2-401 (West
2008), and a 2010 conviction for distributing a controlled substance in violation of Okla.
Stat. Ann. Tit. 63, § 2-401 (West 2009). Both convictions resulted in prison sentences
greater than one year; the convictions arose from different charging instruments; and the
sentences for the convictions were imposed on different dates. Thus, we conclude the
PSR accurately classified the convictions as prior convictions for controlled substance
offenses under U.S.S.G. § 4B1.1(a). See U.S.S.G. §§ 4B1.2(b), (c)(2); see also U.S.S.G.
§ 4A1.2. We agree with defense counsel that this claim is frivolous.
Defense counsel says Ramirez might also complain that the district court
impermissibly “double count[ed]” her prior Oklahoma drug convictions when it classified
her as a career offender. Aplt. Br. at 5. Because Ramirez did not raise this issue below,
we again review for plain error. Ferrel, 603 F.3d at 763.
To the extent Ramirez might argue that the district court erred in counting her
prior convictions for controlled substance offenses twice—first to increase her criminal
history category, and again to increase the offense level—the district court’s use of the
prior convictions comports with the plain language of the Guidelines. See U.S.S.G.
§ 4B1.1(b) (stating “career offender’s criminal history category in every case . . . shall be
Category VI,” and requiring district court to increase offense level for career offender to
offense level provided in § 4B1.1(b) if that offense level is “greater than the offense level
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otherwise applicable”). To the extent Ramirez might instead suggest that the use of her
prior convictions to increase her sentence runs afoul of the Double Jeopardy Clause, the
United States Supreme Court has “consistently rejected double jeopardy challenges to
recidivism statutes.” United States v. Andrews, 447 F.3d 806, 810 (10th Cir. 2006)
(discussing Witte v. United States, 515 U.S. 389 (1995)). We conclude this claim is also
frivolous.
Next, defense counsel says Ramirez might argue her sentence is excessive. We
interpret this argument as a challenge to the substantive reasonableness of Ramirez’s
sentence, and we review for abuse of discretion despite Ramirez’s failure to challenge the
length of her sentence as unreasonable below. See United States v. Balbin-Mesa, 643
F.3d 783, 786-87 (10th Cir. 2011) (reviewing defendant’s substantive-unreasonableness
claim for abuse of discretion); United States v. Torres-Duenas, 461 F.3d 1178, 1183
(10th Cir. 2006) (“[W]hen the claim is merely that the sentence is unreasonably long, we
do not require the defendant to object in order to preserve the issue.”). Ramirez’s
sentence of 240 months falls below the advisory Guidelines range, and is therefore
presumptively reasonable. See Balbin-Mesa, 643 F.3d at 788. We see nothing in the
record that would overcome this presumption. Thus, we find no abuse of discretion, and
we conclude the claim is frivolous. See id. at 787 (explaining district court abuses its
discretion if it renders judgment that is arbitrary, capricious, whimsical, or manifestly
unreasonable).
Finally, defense counsel says that Ramirez might argue she would not have
entered a plea had she known ahead of time that the district court would impose a 240-
4
month prison sentence. We interpret this as an argument that defense counsel was
ineffective in failing to accurately advise Ramirez regarding the potential sentence. We
have consistently characterized ineffective-assistance-of-counsel claims raised for the
first time on direct appeal as presumptively dismissible. See, e.g., United States v.
Galloway, 56 F.3d 1239, 1240 (10th Cir. 1995). Without passing on the merits of
Ramirez’s claim, we conclude it would be frivolous to raise the claim on direct appeal
because we would decline to consider it.
Because Ramirez’s appeal presents only frivolous issues, we dismiss the appeal
and grant defense counsel’s motion to withdraw.
Entered for the Court,
Nancy L. Moritz
Circuit Judge
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