United States v. Ramirez-Meneses ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20616
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDY ALBERTO RAMIREZ-MENESES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-105-1
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August 22, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges.
PER CURIAM:*
Fredy Alberto Ramirez-Meneses appeals his sentence following
his guilty-plea conviction for aiding and abetting the
importation of heroin and aiding and abetting the possession of
heroin with intent to distribute, in violation of 21 U.S.C.
§§ 952(a) and 841(a)(1) and 18 U.S.C. § 2. Ramirez argues that
the district court erred in denying him a two-level reduction in
his sentence pursuant to U.S.S.G. § 2D1.1(b)(6).
Section 2D1.1(b)(6) of the Sentencing Guidelines provides:
“If the defendant meets the criteria set forth in subdivisions
*
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that this opinion should not be published and is not precedent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.
No. 00-20616
-2-
(1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory
Minimum Sentences in Certain Cases) and the offense level
determined above is level 26 or greater, decrease by 2 levels.”
Because Ramirez was the party seeking an adjustment in the
sentence, he had the burden of proving the facts to support the
adjustment. United States v. Flanagan, 80 F.3d 143, 146 (5th
Cir. 1996).
Ramirez failed to meet his burden of proving his entitlement
to an adjustment under U.S.S.G. § 2D1.1(b)(6). By recanting his
admission that he previously smuggled heroin into the United
States using the same method, Ramirez called into question his
truthfulness. See U.S.S.G. § 5C1.2(5); United States v. Edwards,
65 F.3d 430, 433 (5th Cir. 1995). The Presentence Report (PSR)
and the Government’s response to Ramirez’s objections to the PSR
further supported denial of the adjustment. The district court’s
decision that Ramirez did not qualify for a two-level reduction
under U.S.S.G. § 2D1.1(b)(6) was not clearly erroneous, as it was
plausible in the light of the record read as a whole. See United
States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997). Although
the district court did not articulate specific reasons for
denying the adjustment, the district court adopted the factual
findings and guideline applications contained in the PSR, except
for the drug-quantity determination, as stated in its judgment.
This was sufficient for Fed. R. Crim. P. 32 purposes. United
States v. Mora, 994 F.2d 1129, 1141 (5th Cir. 1993).
Accordingly, the district court’s judgment is
AFFIRMED.