United States v. Ramirez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4393
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VICENTE RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-01138-TLW-1)
Submitted: February 13, 2009 Decided: March 9, 2009
Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
Kathy Price Elmore, ORR, ELMORE & ERVIN, LLC, Florence, South
Carolina, for Appellant. Arthur Bradley Parham, Assistant
United States Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Vicente Ramirez pled
guilty to possession with intent to distribute a quantity of
marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D)
(2006). At the sentencing hearing, the district court
pronounced a sentence of ninety-three months in prison.
Ramirez’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that, in her view,
there are no meritorious grounds for appeal. Counsel questions
whether the district court complied with Rule 11 of the Federal
Rules of Criminal Procedure in accepting Ramirez’s guilty plea,
whether the sentence imposed was reasonable, and whether the
district court abused its discretion in declining to make a
downward variance from the advisory sentencing guidelines range.
Ramirez was advised of his right to file a pro se supplemental
brief, but he did not file one. We affirm Ramirez’s conviction
and the oral sentence imposed at the sentencing hearing but
remand the case to the district court with instructions to
correct the written judgment to conform to the oral sentence.
Counsel raises as a potential issue the adequacy of
the plea hearing but concludes that there were no deficiencies
in the district court’s Rule 11 inquiries. Our careful review
of the record convinces us that the district court substantially
complied with the mandates of Rule 11 in accepting Ramirez’s
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guilty plea and ensured that Ramirez entered his plea knowingly
and voluntarily and that the plea was supported by an
independent factual basis. United States v. DeFusco, 949 F.2d
114, 116, 119-20 (4th Cir. 1991).
Counsel next questions the reasonableness of the
sentence and whether the district court abused its discretion by
denying Ramirez’s motion for a downward variance sentence. We
review the sentence imposed by the district court for an abuse
of discretion. Gall v. United States, 128 S. Ct. 586, 597
(2007). Our review of the record leads us to conclude that the
district court followed the necessary procedural steps in
sentencing Ramirez, properly calculating the guidelines range
and considering that recommendation in conjunction with the
factors set forth in 18 U.S.C. § 3553(a) (2006). See Gall, 128
S. Ct. at 597. We also find that the district court
meaningfully articulated its refusal to vary from the guidelines
range and its decision to sentence Ramirez within the advisory
guidelines range. See id.; Rita v. United States, 551 U.S. 338,
___, 127 S. Ct. 2456, 2462-69 (2007) (upholding presumption of
reasonableness for within-guidelines sentence). Thus, we
conclude that the sentence is reasonable.
We have reviewed the record in accordance with Anders
and affirm Ramirez’s conviction and the ninety-three-month
sentence pronounced at the sentencing hearing. We note,
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however, that the written judgment reflects a sentence of ninety
months’ imprisonment. Where a conflict exists between an orally
pronounced sentence and the written judgment, the oral sentence
controls. Fed. R. Crim. P. 35(c) (“‘[S]entencing’ means the
oral announcement of the sentence.”); United States v. Osborne,
345 F.3d 281, 283 n.1 (4th Cir. 2003); United States v. Morse,
344 F.2d 27, 30-31 (4th Cir. 1965). Thus, we remand the case to
the district court with instructions to correct the written
judgment to conform to the sentence announced at the sentencing
hearing.
This court requires that counsel inform her client, in
writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on the client. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED
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