United States v. Nemicio Ramon , 571 F. App'x 338 ( 2014 )

Case: 13-50065 Document: 00512659889 Page: 1 Date Filed: 06/11/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-50065 FILED
June 11, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
NEMICIO RAMON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:12-CR-11-30
Before KING, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM: *
Nemicio Ramon pled guilty to conspiracy to possess with intent to
distribute 1,000 kilograms or more of marijuana, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A), and 846. At re-arraignment, prior to accepting Ramon’s
guilty plea, the court informed Ramon that he faced a ten-year mandatory
minimum sentence. During sentencing, the district court found that Ramon
was only personally responsible for 181.4 kilograms of marijuana, which
resulted in a range of imprisonment that was less than ten years under the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-50065 Document: 00512659889 Page: 2 Date Filed: 06/11/2014
No. 13-50065
Sentencing Guidelines. Nonetheless, the court sentenced Ramon to the ten-
year mandatory minimum. Ramon did not object. Ramon appeals his
sentence, even though his plea agreement contained an appellate waiver.
For the first time on appeal, Ramon argues that the district court erred
by imposing the ten-year mandatory statutory minimum sentence. He also
asserts that his guilty plea was not knowing and voluntary because the district
court erroneously informed him that he was subject to a mandatory minimum
term of 120 months. The government contends that this appeal should be
dismissed because it is barred by Ramon’s waiver of his right to appeal.
We review the validity of an appeal waiver de novo. See United States v.
Baymon, 312 F.3d 725, 727 (5th Cir. 2002). We will not enforce an appeal
waiver unless the guilty plea was informed and voluntary. United States v.
Dees, 125 F.3d 261, 269 (5th Cir. 1997). Before accepting a defendant’s guilty
plea, the district court is required to advise the defendant of any applicable
statutory minimum. Fed. R. Crim. P. 11(b)(1)(I). Because Ramon did not
object on this basis in district court, our review of any Rule 11 error is limited
to plain error. See United States v. Vonn, 535 U.S. 55, 59 (2002). To show plain
error, Ramon must show a forfeited error that is clear or obvious and that
affects his substantial rights; we then have discretion to correct the error if it
seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See Puckett v. United States, 556 U.S. 129, 135 (2009). In
evaluating whether an alleged Rule 11 violation affects a defendant’s
substantial rights, we look to whether, in light of the entire record, there exists
a “reasonable probability that, but for the error, he would not have entered the
plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Even if the district court committed Rule 11 error by advising Ramon
that he was subject to a 10-year mandatory minimum sentence, his guilty plea
2
Case: 13-50065 Document: 00512659889 Page: 3 Date Filed: 06/11/2014
No. 13-50065
is not subject to vacatur under plain error review because he has failed to show
that, but for the Rule 11 error, there is a reasonable probability that he would
not have pleaded guilty. See United States v. Hughes, 726 F.3d 656, 662 (5th
Cir. 2013). At the time Ramon pled, it was not yet known what quantity of
drugs would be attributable to him at sentencing, but he certainly knew that
he had pleaded to participation in a conspiracy that involved 1,000 kilograms
of marijuana, all of which could potentially be attributable to him. His
argument that but for the alleged error he would not have pleaded guilty is not
supported by the record.
Because examination of the record shows that Ramon’s waiver of his
right to appeal was knowing and voluntary, the appeal waiver is enforceable.
See United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005). Therefore, we
DISMISS the appeal.
3