United States v. Ramos

Case: 19-50932 Document: 00515727141 Page: 1 Date Filed: 02/01/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-50932 February 1, 2021
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Raul Ramos,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-CR-391-1
Before Wiener, Southwick, and Duncan, Circuit Judges.
Per Curiam:*
Defendant-Appellant Raul Ramos pleaded guilty to: (1) one count of
conspiracy to interfere with commerce by threats or violence, a violation of
18 U.S.C. § 1951; (2) one count of conspiracy to distribute and possess with
intent to distribute 50 grams or more of methamphetamine and 100 grams or
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-50932
more of heroin, a violation of 21 U.S.C. § 841(b)(1)(B) and 21 U.S.C. § 846;
and (3) one count of possession of a firearm by a convicted felon, a violation
of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2). Ramos was a leader and
member of the Texas Mexican Mafia (TMM) and was involved in the
group’s conspiracy to commit drug trafficking activities in defined territories.
The TMM mandated that nonmembers who distributed narcotics pay a tax,
known as “the dime,” on the proceeds of their drug transactions. Ramos
denied collecting the dime but acknowledged that it was occurring. The
district court sentenced Ramos to concurrent terms of 240 months of
imprisonment on the § 1951 conviction, life imprisonment on the § 846
conviction, and 120 months of imprisonment on the § 922(g)(1) conviction.
Ramos contends that there was an insufficient factual basis to support
each of his guilty plea convictions. Because he did not raise this challenge in
the district court, we will review Ramos’s claims for plain error. See United
States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc). To succeed on
plain error review, Ramos must establish that there was (1) an error (2) that
was clear or obvious and (3) that affected his substantial rights. United States
v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc). For an error to affect
Ramos’s substantial rights, he must show that there is a “reasonable
probability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). If Ramos makes
this showing, we then have discretion to remedy the error, which we should
exercise only if the error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Delgado, 672 F.3d at 329 (internal
quotation marks, brackets, and citation omitted).
A district court may not enter a judgment of conviction based on a
guilty plea unless there is a factual basis for the plea. FED. R. CRIM.
P. 11(b)(3). To determine whether the factual basis supports a guilty plea,
“[t]he district court must compare (1) the conduct to which the defendant
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admits with (2) the elements of the offense charged in the indictment or
information.” United States v. Hildenbrand, 527 F.3d 466, 474–75 (5th
Cir. 2008) (internal quotation marks and citation omitted). In assessing the
sufficiency of the factual basis under the plain error standard, we “may look
beyond those facts admitted by the defendant during the plea colloquy and
scan the entire record for facts supporting his conviction.” United States
v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010).
Ramos contends that the factual basis for his § 1951 guilty plea
conviction was insufficient because he never admitted to participating in a
conspiracy, including collecting the “dime,” or knowing which individuals
did so. However, considering Ramos’s admitted knowledge of “dimes”
being collected by TMM members, testimony about the organization of the
TMM and its drug trafficking activities, and statements of his co-
conspirators about Ramos’s orders to commit acts of violence, there was
sufficient evidence, under plain error review, that Ramos was part of a
conspiracy to interfere with commerce by threats or violence under § 1951.
See Delgado, 672 F.3d at 329; United States v. Robinson, 119 F.3d 1205, 1212
(5th Cir. 1997). During the change of plea hearing, the district court properly
compared Ramos’s admissions and the statements of his co-conspirators
with the elements of a § 1951 offense, and therefore it had a sufficient factual
basis to accept Ramos’s § 1951 guilty plea. See United States v. Cooper, 979
F.3d 1084, 1089 (5th Cir. 2020).
Ramos argues that the factual basis for his § 846 conviction was
insufficient because it did not establish that he conspired with the TMM to
possess with intent to distribute methamphetamine and heroin. He also
asserts that the Government failed to establish that he possessed more than
100 grams of heroin. However, considering Ramos’s admitted knowledge of
the TMM’s drug trafficking activities, evidence that he conceded ownership
of at least one kilogram of heroin, and other testimony and evidence about
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the organization of the TMM and its drug trafficking activities, there was
sufficient evidence under plain error review that Ramos was part of a
conspiracy to possess with intent to distribute methamphetamine and heroin
under § 846. See United States v. Nieto, 721 F.3d 357, 367 (5th Cir. 2013);
Delgado, 672 F.3d at 329. Furthermore, during the change of plea hearing, the
district court fulfilled its duty by comparing Ramos’s admissions and other
evidence against him to the elements of a § 846 offense. See Cooper, 979 F.3d
at 1089.
Ramos contends that the factual basis for his guilty plea to the
§ 922(g)(1) firearm charge was insufficient because the Government failed to
prove that the firearm was operable. However, the Government was not
required to present evidence that the firearm was operable because the gun
need not be operable as long as it was designed to expel a projectile. See
United States v. Ruiz, 986 F.2d 905, 910 (5th Cir. 1993). Moreover, although
at rearraignment, Ramos might have expressed doubt about the functionality
of the firearm, he clarified that he had never tried to fire it. In light of those
statements and testimony by an FBI agent that the firearm had a loaded
receiver, there was sufficient evidence that Ramos committed a § 922(g)(1)
offense. It thus was not clear or obvious error for the district court to find a
sufficient factual basis for Ramos’s guilty plea to the offense. See United
States v. Broadnax, 601 F.3d 336, 341 (5th Cir. 2010); Delgado, 672 F.3d at
329. Also, the district court adequately compared the elements of a §
922(g)(1) offense with Ramos’s admissions and the evidence against him
during the change of plea hearing. See Cooper, 979 F.3d at 1089.
Ramos also contends that the district court erroneously relied on
hearsay testimony at sentencing. Ramos correctly concedes, however, that
we have held that a defendant’s confrontation right does not extend to
sentencing proceedings, and he acknowledges that his contention is
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foreclosed under our precedent. See United States v. Beydoun, 469 F.3d 102,
108 (5th Cir. 2006). He seeks only to preserve the issue for further review.
AFFIRMED.
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