United States v. Miguel Ramirez Gonzalez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 5 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50175
Plaintiff-Appellee, D.C. No. 3:18-cr-01796-LAB
v.
MEMORANDUM*
MIGUEL RAMIREZ GONZALEZ, AKA
Hector Lopez, AKA Hector Lopez-Cosada,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted August 16, 2019
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,** District
Judge.
Miguel Ramirez Gonzalez appeals his conviction and sentence for being a
removed alien found in the United States, in violation of 8 U.S.C. § 1326, and
improper entry by an alien, in violation of 8 U.S.C. § 1325. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
under 28 U.S.C. § 1291. We affirm.
Ramirez first contends that the district court erred by orally instructing the
jury that the official restraint doctrine required government agents to continuously
observe Ramirez, with no breaks occurring in that observation. He argues this is
inconsistent with our case law recognizing that minor gaps in observation,
amounting to mere seconds, do not render an alien free from official restraint. See,
e.g., United States v. Vasquez-Hernandez, 849 F.3d 1219, 1228 (9th Cir. 2017).
We review de novo whether a jury instruction misstates elements of a crime.
See United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Assuming without
deciding that the district court’s oral instruction was erroneous, we conclude that
any error was harmless beyond a reasonable doubt. See United States v. Castillo-
Mendez, 868 F.3d 830, 839 (9th Cir. 2017). The district court’s written
instructions provided to the jury properly stated the official restraint doctrine
element. See United States v. Walter-Eze, 869 F.3d 891, 911-12 (9th Cir. 2017).
In response to a question from the jury during deliberation, the judge referred the
jury to the same written instruction. Moreover, the jury was not presented with the
issue of whether there was a minor gap (as opposed to no break) in the agent’s
observation of Ramirez. At trial, the government argued that the thermal scope
operator had lost sight of Ramirez and that Agent Stallings had located Ramirez on
his own. By contrast, Ramirez argued that the scope operator never “took [his]
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gaze” off Ramirez. In his closing, Ramirez did not argue there was only a minor
gap in the agent’s observation of him. Consequently, neither the evidence at trial
nor the parties’ theories of the case raised to the jury the possibility that there had
been only “minor gaps” in the government’s surveillance of Ramirez.
Ramirez next argues that the written judgment conflicts with the oral
pronouncement of sentence. We disagree. Contrary to Ramirez’s contention, the
record reveals the oral pronouncement of sentence to be ambiguous on whether the
district court intended to impose a one-year term of supervised release on
Ramirez’s § 1325 conviction. “[T]he written sentence will control where there are
ambiguities in the oral pronouncement of the sentence, and the writing resolves the
ambiguity.” United States v. Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994),
abrogated on other grounds by United States v. Jackson, 167 F.3d 1280 (9th Cir.
1999).
AFFIRMED.
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