United States v. Gerson Fletes-Ramos

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-30129
Plaintiff - Appellee, D.C. No. 2:12-cr-00021-JLR-13
v.
MEMORANDUM*
GERSON FLETES-RAMOS, AKA Guero,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted September 3, 2015**
Seattle, Washington
Before: McKEOWN, GOULD, and N.R. SMITH, Circuit Judges.
Gerson Fletes-Ramos challenges the 56-month sentence imposed following
his 2013 conviction for illegal reentry under 8 U.S.C. § 1326(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Fletes-Ramos first argues that his Sixth Amendment rights were violated
when the judge, rather than a jury, determined facts used to sentence him to a
prison term that exceeded the advisory Guidelines range, which was 41 to 51
months. This argument fails, however, because Fletes-Ramos’s sentence was well
within the 20-year statutory maximum for illegal reentry. The district court judge
was entitled to “exercise discretion—taking into consideration various factors
relating both to offense and offender—in imposing a judgment within the
range prescribed by statute.” Apprendi v. New Jersey, 530 U.S. 466, 481 (2000)
(emphasis in original); see also United States v. Mix, 457 F.3d 906, 914 (9th Cir.
2006) (noting that “the advisory Guidelines remedy . . . ‘gives the sentencing judge
discretion to sentence outside the guideline range’”) (quoting United States v.
Dupas, 419 F.3d 916, 919 (9th Cir. 2005)); United States v. Ray, 484 F.3d 1168,
1171 (9th Cir. 2007).
Fletes-Ramos next argues that his prior state conviction for heroin delivery
should not have triggered a 12-level Guidelines sentencing enhancement as a
felony punishable by more than one year. Because Fletes-Ramos never raised this
argument during sentencing proceedings, it is subject to plain-error review. United
States v. Jackson, 697 F.3d 1141, 1144 (9th Cir. 2012) (per curiam) (“Ninth Circuit
precedent requires that a specific argument clearly be raised in the district court.”).
2
Application of the sentencing enhancement was not plain error because the Oregon
statute under which Fletes-Ramos was convicted carries a 20-year statutory
maximum and United States v. Murillo has not been abrogated or overruled and
remains binding law in this circuit. 422 F.3d 1152, 1155 (9th Cir. 2005) (holding
that, in determining whether a crime is punishable by more than one year, the
operative term is “the potential maximum sentence defined by the applicable state
criminal statute”).
AFFIRMED.
3