United States v. Ramirez , 308 F. App'x 758 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 26, 2009
No. 08-20154
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ISRAEL RAMIREZ
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-336-3
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Israel Ramirez pleaded guilty to conspiracy to possess with intent to
distribute cocaine and was convicted at a bench trial of possessing a firearm
during and in furtherance of a drug trafficking crime. Ramirez argues that the
evidence fails to show that he possessed the firearm in furtherance of a drug
trafficking offense. He contends that the evidence establishes only that the
firearm was present and not that he used the firearm in furtherance of the
offense. We review Ramirez’s challenge to the sufficiency of the evidence to
*
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should not be published and is not precedent except under the limited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.
No. 08-20154
determine whether the finding of guilt is “supported by any substantial
evidence.” United States v. Serna-Villarreal, 352 F.3d 225, 234 (5th Cir. 2003)
(internal quotation marks and citation omitted).
Ramirez further argues that his conviction is constitutionally invalid
because the district court stated in its oral judgment that he was convicted of the
allegedly non-existent offense of possessing a firearm in connection with a drug
trafficking offense. Because Ramirez did not object to the trial court’s alleged
misidentification of the offense in its oral pronouncement of judgment, his
argument is reviewed for plain error. To establish plain error, Ramirez must
show an error that is clear or obvious and that affects his substantial rights. See
United States v. Baker, 538 F.3d 324, 332 (5th Cir.), petition for cert. filed (Dec.
2, 2008) (No. 08-7559). If he makes such a showing, this court has the discretion
to correct the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
The evidence supports Ramirez’s conviction. The trial evidence supports
a finding that Ramirez possessed a firearm and that the firearm was present in
order to protect the drugs he was delivering and to make sure that the drug deal
went according to plan. See United States v. Ceballos-Torres, 218 F.3d 409, 412
(5th Cir.), amended on other grounds, 226 F.3d 651 (5th Cir. 2000). Any error
resulting from the district court’s colloquial reference to the offense of conviction
in its oral judgment does not rise to the level of reversible plain error. See
United States v. Buendia-Rangel, ___ F.3d ___, No. 07-40878, 2008 WL 5221160
(5th Cir. Sept. 9, 2008) (holding that judgment was not invalid because it
identified offense as “[r]e-entry of a deported alien” instead of being “‘found
unlawfully in the United States following removal or deportation’”); United
States v. McGilberry, 480 F.3d 326, 328-331 (5th Cir. 2007) (declining to exercise
discretion to reverse plain error where indictment misstated offense as
possessing, rather than using or carrying, firearm during drug trafficking
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No. 08-20154
offense because jury was properly instructed and evidence was essentially
uncontroverted).
AFFIRMED.
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