United States v. Gilberto Ramos

United States Court of Appeals
For the Eighth Circuit
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No. 17-3680
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gilberto Ray Ramos
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: July 5, 2018
Filed: July 31, 2018
[Unpublished]
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Before WOLLMAN, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
After this court vacated a firearm conviction and remanded for resentencing,
United States v. Ramos, 852 F.3d 747 (8th Cir. 2017), the district court1 conducted
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The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
a hearing and sentenced Gilberto Ramos to a total of 135 months in prison, at the
bottom of the Guidelines range calculated for his remaining jury-trial convictions for
conspiracy, distribution of methamphetamine, and possession with intent to distribute
methamphetamine, see 21 U.S.C. §§ 841(a)(1) and 846. Ramos appeals, and his
counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging
application of a sentence enhancement for his possession of a firearm under United
States Sentence Guidelines § 2D1.1(b)(1), despite this court’s reversal of his
conviction for being a felon in possession of a firearm.
A summary of the trial evidence, which was sufficient to support Ramos’s drug
convictions, is included in this court’s earlier decision. See Ramos, 852 F.3d at
750-51. In part, the evidence established that Ramos received and distributed
methamphetamine from his two-bedroom apartment in Springdale, Arkansas, and that
officers who searched the apartment, which Ramos shared with a woman, found a
ledger, a digital scale, baggies, cash, and methamphetamine in the kitchen; and found
a .45 caliber pistol under the mattress in one of the bedrooms, the closet for which
contained men’s and women’s clothing. The district court, in resentencing Ramos on
his drug-related convictions, overruled his challenge to application of the two-level
section 2D1.1(b) enhancement for his possession of a firearm, finding that a
preponderance of the evidence established it was not clearly improbable that the
weapon was connected to the drug-trafficking activity. Upon careful review, we
conclude that the district court did not clearly err, see United States v. Anderson, 618
F.3d 873, 879-82 (8th Cir. 2010); States v. Mendoza, 341 F.3d 687, 694 (8th Cir.
2003); United States v. Braggs, 317 F.3d 901, 904-05 (8th Cir. 2003),
notwithstanding the sentencing court’s consideration of acquitted conduct, see United
States v. Watts, 519 U.S. 148, 156 (1997) (per curiam). We also conclude that the
district court’s imposition of a sentence at the bottom of the Guidelines range was not
substantively unreasonable. See United States v. Cromwell, 645 F.3d 1020, 1022 (8th
Cir. 2011).
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After reviewing the record independently under Penson v. Ohio, 488 U.S. 75
(1988), we find no non-frivolous issues for appeal. The judgment of the district court
is affirmed, and counsel’s motion to withdraw is granted.
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