United States v. George Ramirez, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, Nos. 12-10603, 12-10604
Plaintiff - Appellee, D.C Nos.4:09-cr-50152-RCC-JR-
1, 4:11-cr-02322-RCC-JR-1
v.
GEORGE RAMIREZ, JR., aka George MEMORANDUM*
Ramirez,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 13-10006
Plaintiff - Appellee, D.C. No. 4:11-cr-02322-RCC-JR-2
v.
DAVID ANTHONY FIGUEROA,
Defendant - Appellant.
Appeals from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Argued and Submitted July 7, 2015
San Francisco, California
Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.
1. Even assuming that Defendant sufficiently raised the issue before the
district court, the district court did not abuse its discretion by declining to instruct
the jury on entrapment at the close of George Ramirez’s trial. A defendant is
entitled to a theory-of-defense instruction only if it has some foundation in the
evidence and is supported by law. United States v. Johnson, 459 F.3d 990, 992
(9th Cir. 2006). Ramirez’s proposed entrapment defense lacked a foundation in the
evidence because he failed to show that he was not otherwise predisposed to
participate in the offense. See United States v. Spentz, 653 F.3d 815, 818 (9th Cir.
2011).
2. In determining Ramirez’s offense level, the district court did not
commit clear error by applying the two-level enhancement for use of a firearm
under U.S.S.G. § 2D1.1(b)(1). See United States v. Ortiz, 362 F.3d 1274, 1277–78
(9th Cir. 2004). The government provided sufficient evidence for the district court
** The Honorable Paul L. Friedman, District Judge for the U.S. District
Court for the District of Columbia, sitting by designation.
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to conclude that co-defendant David Figueroa’s use of a firearm was both
reasonably foreseeable to Ramirez and in furtherance of their jointly undertaken
criminal activity. Several times in the record, Ramirez mentioned the use of
firearms in similar drug trafficking offenses. Thus, the district court did not
commit clear error in concluding that Ramirez could reasonably foresee that
Figueroa would be armed, even if he and Figueroa never discussed the need for
protection beforehand.
3. We must, however, vacate Ramirez’s sentence and remand for
resentencing. The district court committed three errors in sentencing Ramirez.
First, the district court improperly calculated the drug quantities involved in
the conspiracy. The Pre-Sentence Report (PSR) concluded that Ramirez’s offense
level should be based on 10 kilograms of cocaine from the May 13, 2011,
transaction, plus an additional 10 kilograms of cocaine from the June 2, 2011,
transaction, totaling 20 kilograms of cocaine. However, Ramirez agreed to engage
in only one transaction, not two. The May 13 transaction was unsuccessful solely
because the government chose to leave the storage unit with “wrappings” and
“drug paraphernalia,” rather than the actual drugs, in order to surveil the
defendants’ activities in preparation for their arrest at a later time. When Figueroa
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returned on June 2 to complete the transaction initially planned for May 13, the
defendants were not conspiring to obtain additional quantities of cocaine. Instead,
they were attempting to carry out the one transaction originally planned for May
13. There is no indication in the record that the defendants would have agreed to
participate in a second transaction on June 2 for additional quantities if the May 13
transaction had been successful. The district court therefore erred in adopting the
PSR’s drug quantity calculations. On remand, Ramirez’s offense level should be
calculated based on 10 kilograms of cocaine, if the district court, as addressed
below, makes express factual findings and rejects Ramirez’s sentencing entrapment
argument.
Second, the district court failed to make “express factual findings” when it
rejected Ramirez’s sentencing entrapment argument, as our case law requires.
United States v. Riewe, 165 F.3d 727, 729 (9th Cir. 1999) (per curiam). Although
the district court adopted the PSR’s findings, the PSR did not make any express
factual findings regarding sentencing entrapment. In fact, the PSR took “no
position regarding the legal argument for sentencing entrapment” and left the
matter to the court’s discretion. Because the PSR declined to address sentencing
entrapment and the district court adopted the PSR’s statements without any
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supplemental commentary, we must remand for the district court to make express
factual findings regarding sentencing entrapment.
Third, when imposing Ramirez’s sentence, the district court orally
announced that the counts of conviction consisted of: (1) conspiracy to possess
with intent to distribute marijuana and cocaine, (2) attempt to possess with intent to
distribute marijuana (2 counts), and (3) conspiracy to possess with intent to
distribute cocaine. However, as reflected correctly in the written judgment,
Ramirez was actually convicted of only one conspiracy count; he was actually
indicted for and convicted of: (1) conspiracy to possess with intent to distribute
marijuana and cocaine, (2) attempt to possess with intent to distribute marijuana,
(3) attempt to possess with intent to distribute cocaine, and (4) possession with
intent to distribute marijuana. Because the orally pronounced sentence is the
official “imposition of sentence,” United States v. Aguirre, 214 F.3d 1122, 1125
(9th Cir. 2000), we must remand for the district court to reimpose sentence on the
correct counts of conviction. Whether doing so will affect the length of the
sentence ultimately imposed is a matter the district court should address in the first
instance.
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4. Ramirez’s counsel filed an Anders brief in the separate appeal from
the district court’s judgment revoking supervised release. Ramirez submitted a pro
se supplemental opening brief, but did not present any relevant legal challenges to
the district court’s revocation of supervised release. Our independent review of the
record confirms that there are no arguable issues on appeal. See Anders v.
California, 386 U.S. 738, 744 (1967).
5. Finally, we must also vacate Figueroa’s sentence and remand for
resentencing. Two adjustments must be made in calculating his offense level on
remand.
First, as with Ramirez, we conclude that Figueroa’s PSR improperly
calculated the drug quantities involved in the conspiracy by essentially doubling
the quantity of cocaine the defendants had agreed to acquire. On remand,
Figueroa’s offense level should be calculated based on 10 kilograms of cocaine.
Second, the district court must grant Figueroa an additional one-level
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). At the time
of Figueroa’s sentence, the government chose not to award the additional level
because Figueroa retained his right to appeal. After Figueroa’s sentence, however,
the Sentencing Commission amended § 3E1.1(b) to clarify that the government
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may not refuse a reduction merely because a defendant declines to waive his
appellate rights. U.S.S.G. § 3E1.1(b) cmt. n.6 (effective Nov. 1, 2013). We
recently held that the Commission’s amendment to § 3E1.1(b) is retroactive.
United States v. Cabrera-Guiterrez, 756 F.3d 1125, 1127 n.1 (9th Cir. 2014). On
remand, the district court should calculate Figueroa’s offense level based on a
three-level reduction for acceptance of responsibility.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND
REMANDED.