United States v. Gilberto Ramos

United States Court of Appeals
For the Eighth Circuit
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No. 16-1306
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gilberto Ray Ramos
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: September 19, 2016
Filed: March 27, 2017
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Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.
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KELLY, Circuit Judge.
Gilberto Ray Ramos was convicted after trial of multiple drug offenses, as well
as the offense of being a felon in possession of a firearm. He appeals those
convictions, arguing that they were supported by insufficient evidence, that the
district court erred in admitting an exhibit that included an Arkansas Parole Board
Waiver of Revocation Hearing form he signed, and that his sentence is substantively
unreasonable. We affirm in part and reverse in part.
I. Background
Law enforcement first became interested in Ramos during a wiretap
investigation of another individual, Abraham Duran. One of the wiretap monitors,
Gary Gregory, testified that he had monitored and translated three calls between
Duran and another individual with a telephone number ending in 0679. During one
of the calls, Duran asked the individual if he needed “more.” During another call,
Duran told the individual to call him so Duran could “take [him] the other part.”
Duran was eventually arrested for and convicted of distribution of methamphetamine,
and, pursuant to a plea agreement, cooperated with law enforcement officers in their
investigation.
Duran testified at trial that Ramos was the individual he had been speaking to
in the three intercepted calls. Duran testified that the calls related to his agreement
with Ramos to distribute methamphetamine. According to Duran, he supplied Ramos
with methamphetamine at Ramos’ residence at the Brookhaven Apartments in
Springdale, Arkansas. Duran also testified about a text message that law enforcement
had retrieved from his phone. According to Duran, in the text message, Ramos was
offering to sell him a .40 caliber firearm.
Detective Preston Oswalt testified that he arranged for a confidential informant,
Armando Gonzales, to make controlled purchases of methamphetamine from Ramos.
Based on information provided by Gonzales, Oswalt located an apartment that he
believed was Ramos’ at the Brookhaven Apartments. According to Oswalt,
Springdale water records listed Ramos as the occupant of the apartment. Gonzales
made controlled purchases of methamphetamine at the apartment on three occasions.
Each time, Gonzales purchased one gram of methamphetamine for $100. After the
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first purchase, Oswalt showed Gonzales a known photograph of Ramos, and Gonzales
confirmed that Ramos had been the one to sell him the methamphetamine. Gonzales
also testified at trial. According to Gonzales, he offered to work with the police in
order to reduce his punishment for drug possession charges. Gonzales also identified
Ramos in court as the man who sold him the methamphetamine.
Oswalt testified that on December 5, 2014, he and other police officers
executed a search warrant at the apartment. Before they executed the warrant,
officers saw a man and a woman approach the apartment and knock on the door.
Another woman, later identified as Jasmyn Schmid, answered the door. Oswalt
testified that in his understanding, Schmid was living at the apartment at the time.
Schmid and the other two individuals left the residence together in a vehicle. Officers
stopped the vehicle, and questioned and searched Schmid. They found a marijuana
pipe, a methamphetamine pipe, a digital scale, and user amounts of marijuana and
methamphetamine, and arrested her for drug possession. Then, officers searched the
apartment. In the kitchen, they found a ledger, digital scale, baggies, and cash, as
well as approximately two ounces of methamphetamine in Kool-Aid containers in the
freezer. In one of the two bedrooms, they found a .45 caliber pistol under the
mattress, next to a pink vibrator. The bedroom closet contained men’s and women’s
clothing. The other bedroom’s closet also contained men’s clothing. On February
19, 2015, law enforcement located Ramos at his mother’s residence and arrested him.
The officers searched the residence, and found a water bill for the Brookhaven
apartment in Ramos’ name.
At the time he was arrested, Ramos was on parole for an Arkansas criminal
conviction. Ramos’ parole officer Taylor Sevier1 testified at trial that he notified
Ramos on February 23, 2015, that he was seeking to revoke Ramos’ release. He
1
Taylor Sevier’s name was Taylor Pennington at the time of the parole
revocation proceedings.
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provided Ramos with a form titled Notice of Parole Violation Action (Notice Form),
which listed the alleged violations.
Sevier testified that he informed Ramos he had a right to a revocation hearing.
Instead, on March 10, 2015, Ramos signed a form titled Arkansas Parole Board
Waiver of Revocation Hearing (Waiver Form), in which he waived his right to a
hearing and admitted to the alleged violations. The Waiver Form states, in part, “I
admit that I have violated the following condition(s) of release as alleged[.]”
Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked. At the bottom
of the form are the dated signatures of Ramos, Sevier, and a hearing judge. The
Notice Form previously provided to Ramos includes more detail regarding his alleged
violation of the “#4 Laws” release condition:
#4 Laws: Count 1) Over the last four months Ramos committed the
offense of Possession of a Controlled Substance with Purpose Schedule
II (Methamphetamine). Count 2) Over the last four months Ramos
committed the offense of Simultaneous Possession of Drugs and
Firearms. Count 3) Over the last four months Ramos committed the
offense of Possession of Drug Paraphernalia. Count 4) Over the last
four months Ramos committed the offense of Possession of a Controlled
Substance Schedule VI. Count 5) Over the last four months Ramos
committed the offense of Possession of a Controlled Substance Schedule
II (Acetaminophen/Hydrocodone). Count 6) Over the last four months
Ramos committed the offense of Delivery of a Controlled Substance
Schedule II (Methamphetamine). Count 7) Over the last four months
Ramos committed the offense of Delivery of a Controlled Substance
Schedule II (Methamphetamine). Count 8) Over the last four months
Ramos committed the offense of Delivery of a Controlled Substance
Schedule II (Methamphetamine). Count 9) Over the last four months
Ramos committed the offense of Theft by Receiving. Count 10) Over
the last four months Ramos committed the offense of Possession of a
Firearm by Certain Person.
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The government offered the Waiver Form and Notice Form into evidence as
a single exhibit, Exhibit 37. Ramos objected under Rule 403 of the Federal Rules of
Evidence. The district court overruled the objection, and admitted the exhibit.
The jury ultimately convicted Ramos of one count of conspiracy to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; three counts of
distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); one count of
possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1); and one count of being a felon in possession of a firearm, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). The jury acquitted Ramos of one count of
knowingly possessing a firearm in furtherance of a drug trafficking crime in violation
of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Ramos to 148 months for
each of the drug offenses, and 120 months for the offense of being a felon in
possession of a firearm, to run concurrently. Ramos timely appealed.
II. Discussion
Ramos appeals on the grounds that there was insufficient evidence to support
his convictions, that the district court erred in admitting Exhibit 37, and that his
sentence was substantively unreasonable.
A. Sufficiency of the Evidence
First, Ramos argues there was insufficient evidence to support his convictions.
Ramos did not move for judgment of acquittal at the close of the government’s
case—a failure that would ordinarily necessitate plain-error review. United States v.
Calhoun, 721 F.3d 596, 600 (8th Cir. 2013). Here, however, the district court sua
sponte considered the sufficiency of the evidence at the close of the evidence as if
Ramos had moved for a judgment of acquittal, and ruled that it would deny such a
motion. A basic reason for requiring litigants to preserve issues for appeal is to give
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the district court an opportunity to prevent or correct mistakes in the first instance.
United States v. Simms, 757 F.3d 728, 733–34 (8th Cir. 2014). Here, the district
court had that opportunity and took it when it considered the question as if Ramos
had raised it. Even if Ramos technically forfeited, or even waived, his right to move
for a judgment of acquittal, he did not forfeit or waive his right to appeal from the
trial court’s sua sponte order holding that the evidence was sufficient to sustain a
guilty verdict. At least one other circuit has, in a similar situation, reviewed the
record de novo rather than for plain error. See United States v. Wolff, 370 F. App’x
888, 891–92, 891 n.1 (10th Cir. 2010) (unpublished). Accordingly, we will “review
the sufficiency of the evidence to sustain a conviction de novo, viewing the evidence
in the light most favorable to the jury’s verdict and reversing the verdict only if no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.”
United States v. Ways, 832 F.3d 887, 894 (8th Cir. 2016).
1. Drug convictions
Initially, Ramos argues there was insufficient evidence to support his
convictions for distribution of methamphetamine, possession with intent to distribute
methamphetamine, and conspiracy to distribute methamphetamine. He contends that
Duran’s testimony was insufficient to establish a conspiracy, that insufficient
evidence connects him to the apartment where the methamphetamine was found, and
that Gonzales’ testimony was inconsistent and unreliable.
To prove that a defendant distributed methamphetamine in violation of 21
U.S.C. § 841(a)(1), the government is required to prove that the defendant distributed
the methamphetamine, and that he knew it was a controlled substance at the time of
distribution. See United States v. Hernandez, 569 F.3d 893, 896 (8th Cir. 2009). To
establish that a defendant possessed methamphetamine with the intent to distribute
it under 21 U.S.C. § 841(a)(1), “the government must prove that the defendant (1)
knowingly possessed the methamphetamine; and (2) had intent to distribute it.”
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United States v. Trejo, 831 F.3d 1090, 1094 (8th Cir. 2016). And “[t]o establish that
a defendant conspired to distribute drugs under 21 U.S.C. § 846, the government must
prove: (1) that there was a conspiracy, i.e., an agreement to distribute the drugs; (2)
that the defendant knew of the conspiracy; and (3) that the defendant intentionally
joined the conspiracy.” United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007)
(quoting United States v. Espino, 317 F.3d 788, 792 (8th Cir. 2003)).
First, Ramos argues that there was insufficient evidence to support his
conviction for conspiracy to distribute methamphetamine, because the only evidence
connecting him to the purported conspiracy was Duran’s testimony. According to
Ramos, Duran’s testimony was insufficient for this purpose because it was conclusory
and uncorroborated, and because Duran was promised a reduced sentence in
exchange for testifying. But accomplice testimony need not be corroborated to
support a conviction. See United States v. Fuller, 557 F.3d 859, 863 (8th Cir. 2009).
Unless the testimony is implausible on its face, which Duran’s testimony was not, we
defer to the jury’s determination of whether an accomplice is credible. Id.
Next, Ramos argues that there was insufficient evidence that he possessed or
distributed methamphetamine. He contends that the government failed to prove he
resided in the apartment where the methamphetamine was found, and that, in fact,
Schmid was the person residing at the apartment. He points out that officers did not
see him entering or leaving the apartment before executing the search warrant, and
that Oswalt was unable to see who was selling methamphetamine to Gonzales during
the controlled purchases. However, other evidence indicated that Ramos lived at the
apartment: Water records listed him as the resident, Duran testified that Ramos lived
there, Gonzales identified Ramos as the person who sold him methamphetamine at
that apartment, and Sevier testified that Ramos gave him the address of the apartment
as his residence. Given the evidence presented, we cannot say no reasonable jury
could find that Ramos possessed and distributed methamphetamine.
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Finally, Ramos argues that Gonzales’ testimony was unreliable, because
Gonzales testified that the first time he made a controlled purchase from Ramos,
Ramos was already at the apartment when he arrived. This was inconsistent with
Oswalt’s testimony that the man who sold methamphetamine to Gonzales that day
met him at the apartment on a motorcycle. When cross-examined, Gonzales testified
that he might be remembering events incorrectly, and admitted that it was possible
he did not remember who he bought drugs from that day. But it is within the province
of the jury to resolve conflicting testimony and make credibility determinations, and
we will not disturb those findings on appeal. United States v. Coleman, 525 F.3d
665, 666 (8th Cir. 2008). In sum, we conclude that Ramos’ drug convictions were
supported by sufficient evidence, and the district court did not err by not entering a
judgment of acquittal.
2. Felon in possession of a firearm conviction
Ramos additionally argues that there was insufficient evidence to support his
conviction for being a felon in possession of a firearm, because the gun was found
under a mattress next to a pink vibrator, and there was women’s clothing in the closet
of the bedroom where it was found. Furthermore, Ramos notes, although Duran
testified that Ramos tried to sell him a .40 caliber gun, the gun found in the bedroom
was a .45 caliber, and neither Oswalt nor Duran ever saw Ramos with a firearm.
A conviction for being a felon in possession of a firearm under 18 U.S.C.
§ 922(g)(1) may be based on constructive possession. United States v. Boykin, 986
F.2d 270, 274 (8th Cir. 1993). “[C]onstructive possession requires both knowledge
that the contraband is present and dominion over the premises where the contraband
is located.” Ways, 832 F.3d at 897. Some of our cases have concluded that dominion
over the premises can be sufficient by itself to prove constructive possession, because
dominion may “give[] rise to a strong inference of knowledge.” United States v.
Dooley, 580 F.3d 682, 686 (8th Cir. 2009) (explaining why some cases appear to
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elide the distinction between knowledge and dominion). But such an inference is not
warranted under the facts of every case. See id. (“[T]his inference may be rebutted
if other evidence contradicts it.”). Thus, mere dominion is not always sufficient to
establish constructive possession. See, e.g., Ways, 832 F.3d at 897–88; United States
v. Smith, 508 F.3d 861, 867 (8th Cir. 2007); United States v. Pace, 922 F.2d 451, 453
(8th Cir. 1990).
One context where mere dominion is insufficient to show that the defendant
knowingly possessed a gun is in cases involving joint occupancy. We have explained
that “when there is joint occupancy of a residence, dominion over the premises by
itself is insufficient to establish constructive possession.” United States v. Wright,
739 F.3d 1160, 1168 (8th Cir. 2014). Rather, the government must provide additional
evidence of a link between the contraband and the defendant. Id. Otherwise, a father
could be imprisoned for marijuana that his son has hidden in the house, or a wife
could be jailed for her husband’s secret cache of illegal guns. See id. at 1174 (Riley,
C.J., concurring).
Here, because Ramos jointly occupied the apartment with Schmid, the
government was required to provide some evidence linking him to the gun beyond
his dominion over the apartment. The government points to evidence that the officers
found some men’s clothes in the closet in the bedroom where the gun was found. But
they also found women’s clothes in that closet and men’s clothes in the other
bedroom’s closet. Further, the gun was found under the mattress next to a pink
vibrator. It is unclear whether Ramos, though he lived at the apartment, exercised any
control over the bedroom where the gun was found. On this evidence, it is more than
possible that Ramos was convicted because Schmid had a weapon that Ramos did not
know about. A reasonable jury could not conclude beyond a reasonable doubt to the
contrary.
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We acknowledge the government presented evidence that Ramos tried to sell
a different gun to Duran and admitted in the Waiver Form2 that he violated a
condition of parole involving “Weapons.” But neither of these facts ties Ramos to
the particular gun that he was charged with possessing. Although this evidence may
demonstrate that Ramos had access to a gun, as the government argues, it does not
mean that he had access to this gun or that he even knew about it. And though the
firearm likely belonged to either Ramos or Schmid or both, “a conscientious mind
would have to have entertained a reasonable doubt” about whether Ramos
constructively possessed it. See United States v. Hall, 999 F.2d 1298, 1299 (8th Cir.
1993). Because insufficient evidence supported Ramos’ conviction for being a felon
in possession of a firearm, we reverse the judgment as to that conviction.
B. Admission of Exhibit 37
Ramos also argues that the district court abused its discretion in overruling his
Rule 403 objection and admitting Exhibit 37 into evidence. Ramos argues that the
exhibit was more prejudicial than probative because he may not have been aware that
his admissions on the Waiver Form could be used against him in a federal
prosecution, because he signed the form without benefit of counsel, because he was
not under oath when he signed the form, because he signed the form to avoid the risk
of receiving a longer revocation, and because a parolee is entitled only to limited due
process rights at a parole revocation hearing.
Evidence may be excluded under Rule 403 of the Federal Rules of Evidence
“if its probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, [or] misleading the jury.” Fed. R. Evid. 403. “Evidence is not
2
As explained in Part B, the Waiver Form was improperly admitted. However,
we consider both properly admitted evidence and improperly admitted evidence in
determining whether sufficient evidence supports a conviction. Lockhart v. Nelson,
488 U.S. 33, 41 (1988).
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unfairly prejudicial because it tends to prove guilt, but because it tends to encourage
the jury to find guilt from improper reasoning. Whether there was unfair prejudice
depends on whether there was an ‘undue tendency to suggest decision on an improper
basis.’” United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir. 2005) (quoting
United States v. Sills, 120 F.3d 917, 920 (8th Cir. 1997)). A district court’s decision
to admit evidence is reviewed for abuse of discretion. United States v. Farrington,
499 F.3d 854, 859 (8th Cir. 2007). For a Rule 403 challenge, “great deference is
given [to] the district court’s balancing of the probative value and prejudicial impact
of the evidence.” Id. (alteration in original) (quoting United States v. Ruiz, 412 F.3d
871, 881 (8th Cir. 2005)). Recognizing the deference owed the district court in
resolving evidentiary issues such as this one, we nevertheless conclude that Exhibit
37 was improperly admitted.
To begin with, we note that although a defendant’s admissions are usually
considered highly probative, the probative value of the admissions here is diminished
because of the context in which they were made. First, because Ramos made the
admissions during parole revocation proceedings, he was not entitled to “the full
panoply of rights applicable to a criminal trial.” Morrissey v. Brewer, 408 U.S. 471,
499 (1972). Thus, as Sevier testified, Ramos did not have an attorney present, and
was not under oath, when he signed the Waiver Form. Additionally, the requirements
of Rule 11 of the Federal Rules of Criminal Procedure—which are intended to ensure
that a plea is knowing and voluntary—do not apply to a parolee’s admissions to
parole violations. United States v. Rapert, 813 F.2d 182, 185 (8th Cir. 1987).
Furthermore, Sevier testified that signing the Waiver Form automatically revoked
Ramos’ release for six months. According to Sevier, if Ramos had chosen to attend
a revocation hearing instead of signing the Waiver Form, the hearing examiner could
have revoked his release for up to a year. And if Ramos had chosen to proceed to a
revocation hearing, the alleged violations would have had to be proven by only a
preponderance of the evidence, Ark. Code Ann. § 16-93-705(a)(6), the rules of
evidence would not have strictly applied, Lemons v. Arkansas, 836 S.W.2d 861, 863
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(Ark. 1992), the Fourth Amendment exclusionary rule would not have strictly
applied, Dabney v. Arkansas, 646 S.W.2d 4, 5 (Ark. 1983), his right to cross-examine
and confront adverse witnesses could have been limited by the hearing examiner,
Ark. Code Ann. § 16-93-705(d)(1), and he would have had no right to a jury, see Ark.
Code Ann. § 16-93-705(a)(6). Under these circumstances, there was a substantial
likelihood that Ramos could have chosen not to contest the alleged violations, and
waived his right to a hearing, for a number of reasons other than factual guilt, thus
limiting Exhibit 37’s probative value.
Even more important in this case, however, is that any probative value the
exhibit had was substantially outweighed by the risk of unfair prejudice to Ramos.
First, the Waiver Form bears an official seal, legal terminology, and multiple
signatures, including the signature of a hearing judge. These features lend the Waiver
Form “the imprimatur of the judicial system and indicia of official reliability,”
creating a strong possibility that the jury would give it more weight than it deserved.
United States v. McCallum, 584 F.3d 471, 476 (2d Cir. 2009) (discussing the
prejudicial impact of evidence of prior convictions under the Rule 403 balancing
test); cf. Carter v. Burch, 34 F.3d 257, 265 (4th Cir. 1994) (concluding that a judge’s
findings in a different proceeding should be excluded under Rule 403 because it is
likely a jury would “place[] undue weight on such evidence”). Additionally, the
conduct Ramos admitted to is not necessarily the same as the conduct that forms the
basis for the present federal charges. On the Waiver Form, Ramos admitted generally
to violating “#4 Laws” and “#5 Weapons.” But the Notice Form alleged ten separate
parole violations, some of which have potential relevance to the federal charges, and
some of which appear unrelated. It is not clear exactly which of the alleged violations
Ramos was admitting to: It could have been one, some or all of them. See United
States v. Hines, No. 1:12-cr-204-JAW, 2013 WL 1668232, at *7 (D. Me. Apr. 17,
2013). Thus, not only was the jury likely to give Exhibit 37 undue weight, allowing
it into evidence was also likely to confuse the issues and mislead the jury into basing
its decision on an irrelevant, or even nonexistent, admission.
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We must now consider whether the error in admitting Exhibit 37 requires
reversal. We will not reverse an erroneous evidentiary ruling if the error was
harmless. United States v. McPike, 512 F.3d 1052, 1055 (8th Cir. 2008). “An
evidentiary error is harmless when, ‘after reviewing the entire record, we determine
that the substantial rights of the defendant were unaffected, and that the error did not
influence or had only a slight influence on the verdict.’” Id. (quoting United States
v. Lewis, 483 F.3d 871, 875 (8th Cir. 2007)). Because we have already determined
that Ramos’ firearm conviction was not supported by sufficient evidence (even with
Exhibit 37) we consider only whether the admission of Exhibit 37 was harmless error
as to Ramos’ drug convictions.
The government’s evidence here included Duran’s testimony that he agreed to
provide Ramos with methamphetamine to distribute; Gonzales’ testimony that he
bought methamphetamine from Ramos, whom he identified by photograph after
making the first purchase, as well as in court; and Oswalt’s testimony that
methamphetamine was found in Ramos’ apartment. Their testimony was
corroborated by the telephone calls intercepted on the wiretap; water records that
listed Ramos as a resident of the apartment; and the fact that, consistent with
Gonzales’ account of events, the methamphetamine was found in Kool-Aid
containers. In light of this overwhelming evidence, we conclude that the erroneous
admission of Exhibit 37 was harmless with respect to Ramos’ drug convictions.
C. Sentencing
Finally, Ramos challenges his sentence on the grounds that it is substantively
unreasonable because it is greater than necessary to serve the purposes of punishment
outlined in 18 U.S.C. § 3553(a). However, it is unnecessary to reach this issue,
because we find that Ramos’ drug convictions should be remanded for resentencing.
“Where we reverse one of several of a defendant’s criminal convictions, we remand
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for resentencing if ‘we are uncertain whether [the district court] would have imposed
the same or somewhat lesser sentences for the remaining convictions as it did
originally.’” United States v. Thompson, 690 F.3d 977, 996 (8th Cir. 2012)
(alteration in original) (quoting United States v. Schwartz, 924 F.2d 410, 426 (2d Cir.
1991)).
Here, the district court applied a two-level enhancement to its calculation of
Ramos’ offense level for his drug convictions on the grounds that he possessed a
dangerous weapon, pursuant to United States Sentencing Guidelines § 2D1.1(b)(1).
Because we have reversed Ramos’ conviction for being a felon in possession of a
firearm, it is uncertain whether the district court would impose the same sentence for
the drug convictions as it did originally. See United States v. Burrage, 747 F.3d 995,
998 (8th Cir. 2014). Accordingly, we will remand Ramos’ drug convictions to the
district court for resentencing.
III. Conclusion
As to Ramos’ conviction for being a felon in possession of a firearm, the
judgment of the district court is reversed and remanded with directions to enter a
judgment of acquittal. Ramos’ remaining convictions are remanded to the district
court for resentencing on the existing record.
ARNOLD, Circuit Judge, concurring.
I concur in the result in this case. I would not reach the question of whether the
district court erred in admitting Ramos's admission because I agree that any error in
doing so was harmless. The conclusion that there was error is therefore dictum. See
United States v. Monaco, 735 F.2d 1173, 1178 (9th Cir. 1984) (Duniway, J.,
concurring and dissenting); Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U. L. Rev. 1249, 1268 (2006).
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WOLLMAN, Circuit Judge, concurring and dissenting.
I concur in the holding that the evidence was sufficient to support Ramos’
conviction on the drug charges.
I dissent from the reversal of Ramos’ conviction on the felon in possession
charge. In contrast to the situation in United States v. Dooley, Ramos does not
challenge the adequacy or accuracy of the district court’s instructions regarding the
elements of knowing possession of the firearm. He does not, and indeed could not,
argue that he had no possessory interest in the premises at which the gun was found,
and so we are not presented with the specter of possible inadvertent possession, as in
Dooley. Nor need we concern ourselves with fathers being imprisoned for the
marijuana hidden by their wayward sons, nor with wives being jailed for their
husbands’ secret caches of illegal guns, the worst-case scenarios suggested by the
concurring opinion in United States v. Wright.
True enough, the .40 caliber gun that Ramos offered to sell to his drug supplier
was not the .45 caliber gun found at his apartment, but that offer, when coupled with
what I consider to be the properly admitted evidence of his parole revocation waiver
admissions concerning firearms possession, cuts mightily against the argument that
he did not knowlingly possess the .45 caliber gun. Unlike the situation in United
States v. Hall, I disagree with the conclusion that there was no evidence from which
a reasonable mind could find guilt beyond a reasonable doubt on the weapons charge.
While acknowledging the factual differences that existed in United States v. Butler,
594 F.3d 955 (8th Cir. 2010), I would follow the holding in that case and affirm the
conviction on the weapons charge.
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