United States v. Eduardo Ramirez ( 2017 )

Case: 16-41452 Document: 00514276002 Page: 1 Date Filed: 12/18/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41452 FILED
Summary Calendar December 18, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDUARDO HUMBERTO RAMIREZ, also known as Gordo, also known as
Reynaldo Garza,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:12-CR-2018-2
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Eduardo Humberto Ramirez appeals the sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute 1000
kilograms or more of marijuana. In the same proceeding, Ramirez also pleaded
guilty to and was sentenced for a separate drug conspiracy that was charged
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-41452 Document: 00514276002 Page: 2 Date Filed: 12/18/2017
No. 16-41452
back in 2004 in Indiana federal court. Ramirez did not appeal the conviction
or sentence from this earlier offense.
In his appeal of the sentence for the more recent Texas offense, Ramirez
contends that the district court clearly erred in denying him a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. He filed a written
objection to the denial of acceptance of responsibility and renewed his objection
at sentencing.
A defendant who demonstrates acceptance of responsibility for his
offense may receive a two-level reduction pursuant to § 3E1.1(a). Although a
defendant who pleads guilty prior to trial and truthfully admits relevant
conduct may qualify for the reduction, a defendant’s conduct that is
inconsistent with acceptance of responsibility may outweigh this evidence.
§ 3E1.1, comment. (n.3). This court will affirm the denial of a reduction of
acceptance of responsibility unless it is “without foundation, a standard of
review more deferential than the clearly erroneous standard.” United States
v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (internal quotation marks
and citation omitted).
Ramirez has not shown that the district court clearly erred in denying
him a reduction for acceptance of responsibility. See Juarez-Duarte, 513 F.3d
at 211. Because Ramirez was being sentenced for both conspiracy convictions,
the counts of conviction were grouped pursuant to U.S.S.G. § 3D1.2(d) for
purposes of calculating his advisory guidelines range. Ramirez was released
on bond in November 2004 in the Indiana case and absconded from pretrial
supervision. He subsequently returned to Texas, began using an alias, and
joined another drug conspiracy. He was a fugitive from justice for almost 12
years and at the time of his arrest for the instant offense. Ramirez’s fugitive
status and use of an alias were inconsistent with acceptance of responsibility.
2
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No. 16-41452
See United States v. Lujan-Sauceda, 187 F.3d 451, 451-52 (5th Cir. 1999)
(affirming denial of reduction based on defendant’s failure to appear at
sentencing); United States v. Valle-Porcallo, 475 F. App’x 515, 515 (5th Cir.
2012) (affirming denial of reduction based on defendant’s flight and fugitive
status); United States v. Venegas, 273 F.3d 1108, 2001 WL 1131844 (5th Cir.
2001) (affirming denial of reduction based on the defendant’s use of false names
and his refusal to speak to the probation officer). 1 The district court’s denial
of a reduction for acceptance of responsibility was not without foundation. See
Juarez-Duarte, 513 F.3d at 211. Ramirez’s request to abate the appeal should
be denied.
AFFIRMED; REQUEST TO ABATE APPEAL DENIED.
1 Although unpublished opinions issued on or after January 1, 1996, are not
precedential, they may be considered persuasive authority. See Ballard v. Burton, 444 F.3d
391, 401 n.7 (5th Cir. 2006); 5TH CIR. R. 47.5.4.
3