United States v. Gerardo Ramos , 358 F. App'x 754 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3694
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Gerardo Ramos, also known as Chuey, * District of Minnesota.
True Name Jesus Ramos-Martinez, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 2, 2009
Filed: December 28, 2009
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Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Pursuant to a written agreement, Gerardo Ramos pleaded guilty to conspiring
to distribute and possess with intent to distribute 50 grams or more of actual
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. The
district court1 sentenced him to 120 months in prison and 3 years of supervised
release, noting both his lack of criminal history and the seriousness of the offense. On
appeal, Ramos’s counsel has filed a brief under Anders v. California, 386 U.S. 7381
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
(1967), raising as issues whether Ramos’s confusion regarding the Guidelines
calculations provided a sufficient basis for withdrawing his plea, and whether the
sentence is excessive. Ramos has filed a pro se brief, in which he argues that his
sentence is excessive; that some of his codefendants received shorter sentences; that
federal agents conducted a warrantless search of his hotel room; that he should not
have been held responsible for more than 50 grams of methamphetamine; and that his
counsel provided ineffective assistance, and pressured and misled him into pleading
guilty.
At his initial sentencing hearing, Ramos told the district court that when he
entered his guilty plea he had been confused about the total amount of drugs involved
and the possible imprisonment range. After re-instructing Ramos regarding the
relevant Guidelines calculations and the amount of drugs involved, the court told him
it would allow him to withdraw his plea and go to trial, and gave him time to talk with
his counsel. Two weeks later, at a second sentencing hearing, Ramos chose not to
withdraw his guilty plea, and indicated that he was ready to be sentenced. We
therefore conclude that Ramos cannot now challenge the voluntariness of his guilty
plea. See United States v. Thompson, 289 F.3d 524, 526-27 (8th Cir. 2002) (plain-
error standard applies only where defendant inadvertently failed to raise objection in
district court; where defendant withdrew objections in district court, he was precluded
from raising those objections on appeal).
We further conclude that Ramos’s sentence, which was below the advisory-
Guidelines range, was reasonable. See United States v. Feemster, 572 F.3d 455, 461,
464 (8th Cir. 2009) (en banc) (standard of review); see also 18 U.S.C. § 3553(a)(1),
(a)(2)(A)-(D) (factors court should consider in sentencing); United States v. Gray, 533
F.3d 942, 944 (8th Cir. 2008) (if district court references some considerations
contained in § 3553(a), this court is ordinarily satisfied that district court was aware
of entire contents of relevant statute).
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Finally, we conclude that Ramos’s remaining pro se arguments do not provide
a basis for reversal. See United States v. Taylor, 519 F.3d 832, 835-36 (8th Cir. 2008)
(guilty plea waives all non-jurisdictional defenses); United States v. Ramirez-
Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (ineffective-assistance claims should
be raised in a 28 U.S.C. § 2255 motion); United States v. Johnson, 408 F.3d 535, 539
(8th Cir. 2005) (where defendant failed to object to drug-quantity calculation in
presentence report, district court could accept that quantity as admitted for sentencing
purposes); United States v. Womack, 985 F.2d 395, 400 (8th Cir. 1993) (shorter
sentence of one codefendant is not enough to invalidate sentence of another; sentence
is not disproportionate just because it exceeds codefendant’s sentence).
After reviewing the record independently under Penson v. Ohio, 488 U.S. 75(1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment
is affirmed.
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