United States v. Jose Ramon , 615 F. App'x 235 ( 2015 )

Case: 14-40249 Document: 00513190291 Page: 1 Date Filed: 09/11/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-40249 FILED
Summary Calendar September 11, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE FELIPE RAMON,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-994
Before BENAVIDES, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Jose Felipe Ramon pleaded guilty to one count of possession with intent
to distribute over 100 kilograms of a mixture or substance containing a
detectable amount of marijuana, and he was sentenced within the guidelines
range to 135 months of imprisonment and eight years of supervised release.
On appeal, Ramon contends that the district court committed significant
procedural error by sua sponte applying the enhancement set forth in U.S.S.G.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-40249 Document: 00513190291 Page: 2 Date Filed: 09/11/2015
No. 14-40249
§ 2D1.1(b)(12), without providing him notice as required by Federal Rule of
Criminal Procedure 32. Because Ramon did not raise this claim of error in the
district court, our review is for plain error. See United States v. Esparza-
Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001).
Rule 32 sets forth various requirements pertinent to sentencing,
including the requirement that the presentence report “identify all applicable
guidelines and policy statements of the Sentencing Commission.” FED. R.
CRIM. P. 32(d)(1)(A). Nonetheless, while “[t]he PSR is often conclusive, . . . final
decision-making power must . . . reside with the district court, and the court
must have sufficient flexibility to deal with factors not covered in the PSR or
arising after its writing.” United States v. Knight, 76 F.3d 86, 89 (5th Cir.
1996). Thus, in a case such as the instant one, where Ramon had actual
knowledge of the facts upon which the district court based the enhancement
under § 2D1.1(b)(12), “the Guidelines themselves put defense counsel on notice
that all possible grounds for enhancement . . . are on the table at a sentencing
hearing.” Id. at 88. Ramon therefore has not demonstrated any plain error
with respect to his challenge to his sentence under Rule 32. See Puckett v.
United States, 556 U.S. 129, 135 (2009).
AFFIRMED.
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