United States v. Jose Ramon-Herrada ( 2013 )


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  •      Case: 12-40184       Document: 00512201014         Page: 1     Date Filed: 04/08/2013
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT   United States Court of Appeals
    Fifth Circuit
    FILED
    April 8, 2013
    No. 12-40184
    Summary Calendar                        Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee
    v.
    JOSE ARTURO RAMON-HERRADA,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:11-CR-853-2
    Before JOLLY, JONES, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Jose Arturo Ramon-Herrada (Ramon) appeals his 37-month sentence
    imposed following his guilty plea conviction for conspiracy to export defense
    articles from the United States into Mexico without obtaining a license or
    written authorization for such export. He argues that the district court erred in
    reducing his offense level by two levels for his minor participation in the offense
    rather than by four or three levels for a minimal or less than minor participation
    in the offense. Because Ramon raised his argument regarding the four-level
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40184        Document: 00512201014          Page: 2     Date Filed: 04/08/2013
    No. 12-40184
    adjustment in the district court, this court reviews the issue for clear error. See
    United States v. Villanueva, 
    408 F.3d 193
    , 203 & n.9 (5th Cir. 2005).1
    Under § 3B1.2, a district court may decrease a defendant’s offense level by
    four levels if the defendant was a minimal participant in the criminal activity,
    by two levels if the defendant was a minor participant, or by three levels if the
    level of participation falls between minimal and minor. A “minimal participant”
    is one who is “plainly among the least culpable of those involved in the conduct
    of a group” and who demonstrates a lack of knowledge or understanding of the
    scope and structure of the enterprise. § 3B1.2, comment. (n.4). A “minor
    participant” is any participant who is less culpable than most other participants,
    but whose role could not be described as minimal. § 3B1.2, comment. (n.5).
    The record reflects that Ramon participated in the acquisition and transfer
    of the ammunition; knew that the ammunition would eventually be exported to
    Mexico; recruited a friend to help him store ammunition; and transferred
    ammunition to the second unindicted co-conspirator on at least three prior
    occasions. Ramon has not shown that he lacked knowledge or understanding of
    the scope and structure of the enterprise; thus, he did not qualify as a minimal
    participant. See § 3B1.2, comment. (n.4); United States v. Becerra, 
    155 F.3d 740
    ,
    757 (5th Cir. 1998), abrogated on other grounds as recognized in United States
    v. Farias, 
    481 F.3d 289
    , 291-92 (5th Cir. 2007) (holding that the district court did
    not err in determining that defendant was a minor, rather than minimal,
    participant where evidence showed that defendant knew that he was involved
    1
    In his objections to the pre-sentence report, Ramon stated: “counsel suggests that
    this defendant merits a mitigating role adjustment . . . Defendant would ask for a four (4) level
    decrease from the guidelines.” Ramon never expressly argued that a three-level decrease was
    appropriate. The Government argues that plain error review therefore applies to the analysis
    of the three-level adjustment argument. See United States v. Martinez-Larraga, 
    517 F.3d 258
    ,
    272 (5th Cir. 2008). We need not decide whether the objection that Ramon “merits a
    mitigating role adjustment” is sufficient to preserve his argument for a three-level decrease
    or whether review is limited to plain error review because we conclude Ramon’s challenge fails
    under either test.
    2
    Case: 12-40184     Document: 00512201014     Page: 3   Date Filed: 04/08/2013
    No. 12-40184
    with several other people in an attempt to transport a load of marijuana and
    that his role in the operation was to assist in unloading the marijuana at its
    final destination). Accordingly, the district court did not clearly err in denying
    the four-level minimal role adjustment.
    With regard to a three-level adjustment, Ramon’s actions provided a
    valuable service to the criminal activity and, given his knowledge of the scope
    of the offense, were not less involved than a “minor role,” which itself is “less
    involved” than someone who receives no downward adjustment. Cf. Villanueva,
    
    408 F.3d at
    203 n.9 (holding that a “mule” does not automatically qualify for a
    minor participant adjustment and that a minor participant must be peripheral
    to advancement of illicit activity). We conclude that Ramon has not shown that
    the district court erred.
    The judgment of the district court is therefore AFFIRMED.
    3
    

Document Info

Docket Number: 12-40184

Judges: Jolly, Jones, Haynes

Filed Date: 4/8/2013

Precedential Status: Non-Precedential

Modified Date: 10/19/2024