United States v. Roberto Ramirez-Ramirez , 540 F. App'x 638 ( 2013 )

FILED
NOT FOR PUBLICATION SEP 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50162
Plaintiff - Appellee, D.C. No. 2:08-cr-00701-RT-1
v.
MEMORANDUM*
ROBERTO JAIME RAMIREZ-
RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Robert J. Timlin, Senior District Judge, Presiding
Submitted August 27, 2013**
Pasadena, California
Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
Roberto Ramirez-Ramirez appeals his convictions and sentence for
conspiracy to possess cocaine with intent to distribute and conspiracy to distribute
at least five kilograms of cocaine (21 U.S.C. §§ 846 & 841(b)(1)(A)(ii)),
conspiracy to interfere with commerce by robbery (18 U.S.C. § 1951), possession
of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)),
and being an illegal alien in possession of a firearm (18 U.S.C. § 922(g)(5)).
1. Federal Rule of Criminal Procedure 11(c)(1), on its face, applies to plea
negotiations, not a defendant’s jury trial waiver. Whereas “judicial involvement in
plea negotiations inevitably carries with it the high and unacceptable risk of
coercing a defendant to accept the proposed agreement and plead guilty,” United
States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992), Ramirez-Ramirez contested his
guilt in a bench trial. Moreover, a colloquy is required in other situations when a
defendant waives a jury trial, see, e.g., United States v. Duarte-Higareda, 113 F.3d
1000, 1003 (9th Cir. 1997), and this creates inherent tension between Rule
11(c)(1)’s proscription of judicial participation and a jury trial waiver.
2. The district court’s colloquy adequately addressed the criteria described
in United States v. Cochran, 770 F.2d 850, 852 (9th Cir. 1985). With respect to
precautions that would have been taken in a jury trial to avoid prejudice from the
alien in possession of a firearm charge, the district court did not need to “explain to
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the defendant the strategic ramifications of the decision” to waive a jury trial.
United States v. Reyes, 603 F.2d 69, 72 (9th Cir. 1979) (waiver of 12-person jury).
3. Ramirez-Ramirez did not present any evidence tending to show “a lack of
intent or lack of capability to deal in the quantity of drugs charged.” United States
v. Yuman-Hernandez, 712 F.3d 471, 475 (9th Cir. 2013). Ramirez-Ramirez’s
argument that there was no evidence that he was predisposed mis-perceives the
burden of proof. Id.
4. Although generally a “district court is obligated to make express factual
findings as to whether the defendant met” his or her burden to show sentencing
entrapment by a preponderance of the evidence, United States v. Riewe, 165 F.3d
727, 729 (9th Cir. 1999), here, Ramirez-Ramirez presented no credible evidence to
satisfy his burden. Consequently, the district court’s findings were adequate.
AFFIRMED.
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