United States v. Armando Ramirez , 631 F. App'x 253 ( 2016 )

Case: 14-20332 Document: 00513363093 Page: 1 Date Filed: 02/01/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-20332 FILED
Summary Calendar February 1, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ARMANDO RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-261
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Armando Ramirez pleaded guilty to one count of possession with intent
to distribute methamphetamine and one count of conspiracy to possess with
intent to distribute methamphetamine, and received a within-guidelines
sentence of 135 months of imprisonment and a five-year term of supervised
release on each count, to run concurrently. On appeal, Ramirez argues that
the district court erred by not explicitly ruling on his requests for a minor role
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-20332
reduction pursuant to U.S.S.G. § 3B1.2 and a safety valve adjustment
pursuant to U.S.S.G. § 5C1.2; by failing to adequately state on the record the
reasons for its implicit denial of the requests, and by failing to conduct an
evidentiary hearing when denying the safety valve adjustment.
As Ramirez did not request an evidentiary hearing, object to the district
court’s failure to explicitly deny the requests, or object to the district court’s
alleged failure to adequately explain its reasons for denying the requests
below, our review is for plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 361 (5th Cir. 2009). While a sentencing court commits significant
procedural error where it fails to adequately explain the chosen sentence, Gall
v. United States, 552 U.S. 38, 51 (2007), the sentencing court need only “set
forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decision
making authority,” Rita v. United States, 551 U.S. 338, 356 (2007).
Although the district court arguably did not make an explicit ruling as
to the minor role reduction and safety valve adjustment, it implicitly overruled
both requests and adopted the findings in the presentence report (PSR)
without change. Ramirez points to no authority requiring the district court to
explicitly state on the record that it is overruling an objection to the PSR. See
United States v. Rodriguez-Rodriguez, 388 F.3d 466, 468 n.8 (5th Cir. 2004)
(recognizing that the district court can make explicit and implicit findings of
fact by adopting the PSR and that remand for additional fact-finding is not
necessary so long as the basis for the sentencing decision is sufficiently clear
even if implicit).
The basis for the district court’s conclusions is clear on the record. As to
the minor role reduction, the district court stated that it considered
transporters to be integral parts of a conspiracy, and that Rodriguez was
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No. 14-20332
present during the transaction negotiations and stood to receive a significant
amount of money for his role. As to the safety valve adjustment, in the absence
of any evidence to the contrary, the district court credited the Government’s
assertion that Ramirez had not debriefed truthfully when he claimed that he
did not have any information about the other defendants in the case. Because
the district court judge “set forth enough to satisfy the appellate court that he
has considered the parties’ arguments and has a reasoned basis for exercising
his own legal decision making authority,” Rita, 551 U.S. at 356, Ramirez has
not demonstrated plain error.
Finally, to the extent that Ramirez raises a separate argument that the
district court erred when it determined he was ineligible for the safety valve
adjustment because the Government found Ramirez to be untruthful and
refused to offer it, he provides no argument or analysis on the issue and has
abandoned it. See United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010).
Even if the argument is considered, it is without merit. While the district court
is required to make the final determination as to whether the safety valve
applies, see 18 U.S.C. § 3553(f)(5); § 5C1.2(a), Ramirez nevertheless had the
burden to demonstrate that he truthfully debriefed, see United States v.
Flanagan, 80 F.3d 143, 146-47 (5th Cir. 1996). The district court apparently
credited the Government’s assertion of untruthfulness over Ramirez’s
assertion that he truthfully debriefed. Ramirez provided nothing below to
support his assertion, nor has he unequivocally asserted on appeal that he
truthfully debriefed or cited any evidence that would have demonstrated that
he truthfully debriefed. Ramirez has shown no error, plain or otherwise.
AFFIRMED.
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