United States v. Ramos-Acevedo

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-2520
UNITED STATES OF AMERICA,
Appellee,
v.
RAMÓN E. RAMOS-ACEVEDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Justo Arenas, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Charles F. Wilson, with whom Nevins & Nevins LLP was on
brief,for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, with
whom H.S. Garcia, United States Attorney, was on brief, for
appellee.
January 18, 2006
Per Curiam. Roman Ramos-Acevedo was found by customs
inspectors to be carrying over a kilogram of heroin after
disembarking a cruise ship in San Juan, Puerto Rico. He pleaded
guilty to possessing with intent to distribute and importing the
heroin, see 21 U.S.C. §§ 841(a) & 952(a), but reserved the right to
appeal both the denial of a suppression motion filed prior to the
plea and his sentence.
We start with the denial of the suppression motion. The
heroin was discovered after a series of events Ramos challenged
both below and in his appellate brief as constituting a non-routine
border search unsupported by reasonable suspicion. See United
States v. Montoya De Hernandez, 473 U.S. 531, 538-41 (1985)
(routine border searches may be conducted as a matter of course,
but non-routine searches must be supported by reasonable suspicion
of criminal activity). At oral argument, however, Ramos correctly
conceded that the only incident in this series which was even
arguably non-routine was a custom inspector’s act of reaching into
Ramos’s front pocket a short time before the discovery of the
heroin – an act which, Ramos says, led him to admit his crimes.
But the problem with this argument is that the magistrate judge who
conducted the hearing on the suppression motion found that the
customs agent did not reach into Ramos’s pocket, and Ramos did not
object to this finding in challenging the magistrate judge’s report
and recommendation. Ramos thus “irretrievably waive[d] any right
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to review [of this finding] by the district court and the court of
appeals.” Santiago v. Cannon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.
1998). And nothing in the record leads us to believe that the
circumstances call for intervention under Fed. R. Crim. P. 52(b)
(describing power of appellate courts to notice plain errors).
Ramos’s challenge to his sentence also fails. Ramos
contends that he is entitled to resentencing under United States v.
Booker, 125 S. Ct. 738 (2005), but he received the statutory
minimum sentence and thus could not possibly fare better if we were
to remand. See United States v. Bermudez, 407 F.3d 536, 545 (1st
Cir. 2005); United States v. Antonakopoulos, 399 F.3d 68, 75 (1st
Cir. 2005).
Affirmed.
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