United States v. Noel Ramirez-Bertran

Case: 14-40551 Document: 00513148247 Page: 1 Date Filed: 08/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40551
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 10, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
NOEL DAVID RAMIREZ-BERTRAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-1101-1
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
Noel David Ramirez-Bertran pleaded guilty to illegal reentry in violation
of 8 U.S.C. § 1326(a) and (b)(2), and he was sentenced to 27 months of
imprisonment. Ramirez-Bertran now challenges the district court’s
calculation of his guidelines sentencing range. He concedes that he did not
object on this basis in the district court, however, and we review the issue only
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-40551 Document: 00513148247 Page: 2 Date Filed: 08/10/2015
No. 14-40551
for plain error. See United States v. Rodriguez-Escareno, 700 F.3d 751, 753
(5th Cir. 2012).
The district court applied a 12-level drug-trafficking enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on Ramirez-Bertran’s 2009
Virginia conviction for manufacture of a controlled substance under § 18.2-248
of the Virginia Code. Ramirez-Bertran maintains that nothing in the record
shows under which particular subsection of the Virginia statute he was
convicted and that this court must therefore decide whether the least culpable
conduct under the statute, i.e., giving away or possessing with intent to give
away a small quantity of a controlled substance for no remuneration,
constitutes a drug-trafficking offense for purposes of § 2L1.2, comment.
(n.1(B)(iv)). This court recently held that an enhancement under § 2L1.2(b) for
a prior drug-trafficking conviction, as that term is defined by the Sentencing
Commission in § 2L1.2, comment. (n.1(B)(iv)), is warranted regardless of
whether the conviction for the prior offense required proof of remuneration or
commercial activity. See United States v. Martinez-Lugo, 782 F.3d 198, 204-05
(5th Cir. 2015), petition for cert. filed (June 19, 2015) (No. 14-10355).
Accordingly, the district court did not commit error, plain or otherwise, in
applying the § 2L1.2(b) enhancement.
AFFIRMED.
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