United States v. Enrique Ramirez, Jr.

Case: 10-50675 Document: 00511513950 Page: 1 Date Filed: 06/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 20, 2011
No. 10-50675
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ENRIQUE RAMIREZ, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:76-CR-158-2
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
Enrique Ramirez, Jr., federal prisoner # 53450-146, was convicted of
distributing heroin and was sentenced to serve 15 years in prison and a special
parole term of 15 years. Ramirez now moves this court for authorization to
appeal in forma pauperis (IFP) in his appeal from the district court’s denial of
his motion to correct an illegal sentence under Federal Rule of Criminal
Procedure 35. Insofar as Ramirez argues that the district court erred by
applying 28 U.S.C. § 1915 to his IFP motion, he is wrong. See United States v.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-50675 Document: 00511513950 Page: 2 Date Filed: 06/20/2011
No. 10-50675
Boutwell, 896 F.2d 884, 888-90 (5th Cir. 1990) (one-judge order circulated to
entire court). Ramirez’s request for IFP status will be granted if he is unable to
pay the costs of the appeal and the appeal is taken in good faith. § 1915(a)(1),
(3).
We review the district court’s denial of Ramirez’s Rule 35 motion “only for
illegality or gross abuse of discretion.” United States v. Lewis, 743 F.2d 1127,
1129 (5th Cir. 1984) (internal quotation marks and citation omitted). Ramirez
has not met this standard.
Contrary to his arguments, Ramirez’s sentence was within the pertinent
statutory maximum and was legal. See Artuso v. Hall, 74 F.3d 68, 69, 71 (5th
Cir. 1996); United States v. Pineda, 988 F.2d 22, 22 (5th Cir. 1993); United States
v. Lane, 693 F.2d 385, 390 (5th Cir. 1982). Ramirez’s assertion that he was not
apprised of the maximum potential sentence before pleading guilty should not
be considered in a Rule 35 motion. See Hill v. United States, 368 U.S. 424, 430
(1962). Similarly, insofar as his Double Jeopardy claim relates to his conviction,
the district court did not abuse its discretion by rejecting it because Rule 35 is
not a proper procedural vehicle for such a claim. See id. To the extent that
Ramirez’s Double Jeopardy argument is grounded in his contention that his
sentences were improperly imposed to run consecutively due to constraints on
sentences for conspiracy charges, this argument fails because he was not
convicted of conspiring. His argument grounded in Bifulco v. United States, 447
U.S. 381 (1980), fails for the same reason.
In sum, Ramirez fails to show error in the district court’s certification
decision and fails to show that he will raise a nonfrivolous issue on appeal. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).; Howard v. King, 707 F.2d
215, 220 (5th Cir. 1983). Accordingly, Ramirez’s motion for leave to proceed IFP
on appeal is denied and his appeal is dismissed as frivolous. See Baugh, 117
F.3d at 202 & n.24; 5 TH C IR. R. 42.2.
IFP DENIED; APPEAL DISMISSED.
2