United States v. Ramiro Ramirez, Jr.

Case: 18-50503 Document: 00515126323 Page: 1 Date Filed: 09/20/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-50503
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 20, 2019
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RAMIRO D. RAMIREZ, JR., also known as Ram, also known as Ramiro
Ramirez,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:16-CR-1115-18
Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Ramiro D. Ramirez, Jr., pleaded guilty to a single count of conspiracy to
possess with intent to distribute a controlled substance containing a detectable
amount of cocaine, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b)(1)(C),
and was sentenced to 121 months in prison. Ramirez appeals his sentence.
Ramirez argues that the district court erred by not applying a
mitigating-role adjustment pursuant to U.S.S.G. § 3B1.2. He contends that an
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50503 Document: 00515126323 Page: 2 Date Filed: 09/20/2019
No. 18-50503
adjustment should have been awarded because he was relatively insignificant
to the conspiracy and was the least culpable of its participants. Ramirez
asserts that he was not principally involved in the distribution of cocaine and
that his role in the conspiracy was limited to ensuring that electricity was
supplied to a single crack house and, on a few instances, distributing cocaine.
At sentencing, a defendant must demonstrate by a preponderance of the
evidence that he is entitled to an adjustment under § 3B1.2. See United States
v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001). We review factual findings,
including whether a § 3B1.2 reduction was merited, for clear error. See United
States v. Villanueva, 408 F.3d 193, 203 (5th Cir. 2005).
Ramirez failed to establish the level of culpability of the average
participant in the conspiracy or demonstrate that he was substantially less
culpable than that participant. See § 3B1.2, comment. (n.3(A)); United States
v. Anchundia-Espinoza, 897 F.3d 629, 634 (5th Cir. 2018), cert. denied, 139 S.
Ct. 1291 (2019); United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016).
Ramirez acknowledges that he went to a property used for cocaine distribution
daily to turn on the generator, that he sometimes was paid for this work in
cocaine, and that he was given quantities of cocaine and instructed to deliver
them to buyers. Based on these facts, the district court’s denial of a § 3B1.2
adjustment was plausible in light of the entire record and, thus, not clearly
erroneous. See Villanueva, 408 F.3d at 203. The determination also was
consistent with the list of factors set forth in the commentary to § 3B1.2. See
§ 3B1.2, comment. (n.3(C)); United States v. Bello-Sanchez, 872 F.3d 260, 264
(5th Cir. 2017) (holding that a district court need not weigh each § 3B1.2 factor
on the record).
AFFIRMED.
2