United States v. Carlos Ramirez , 599 F. App'x 753 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50055
Plaintiff - Appellee, D.C. No. 3:13-cr-03097-LAB-1
v.
MEMORANDUM*
CARLOS ALAMILLA RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted April 8, 2015**
Pasadena California
Before: KLEINFELD and CLIFTON, Circuit Judges and SEEBORG,*** District
Judge.
*
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).
***
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
Carlos Ramirez appeals the 63-month sentence imposed following his guilty
plea conviction of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.
Whether the government violated the terms of a plea agreement is reviewed de
novo. United States v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) (per curiam).
But whether the facts demonstrate that there was a breach of a plea agreement is
reviewed for clear error. United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.
1996).
The government did not advocate for a two-level enhancement for a stolen
firearm in violation of Ramirez’s plea agreement. By its plain terms the agreement
states, “[n]othing in this plea agreement shall be construed as limiting the
Government’s duty to provide complete and accurate facts to the district court and
the U.S. Probation Office.” It was not clear error for the district court to find that
the prosecutor was not advocating for a two-level enhancement when he
acknowledged to the probation officer, in a phone call prior to sentencing, that the
gun found in Ramirez’s car was reported stolen. See United States v. Hinkson, 585
F.3d 1247, 1261–63 (9th Cir. 2009) (en banc). Even absent such a finding of fact,
2
the record in this case would not support the conclusion that the government
breached the plea agreement.
Although it is debatable whether a report of a gun being stolen is conclusive
evidence that it was indeed stolen, here, it was not clear error for the district judge
to rely on the PSR and find by a preponderance of the evidence that the gun was
stolen.1 See United States v. Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000).
AFFIRMED.
1
We will, however, grant Ramirez’s motion to strike page 8 of the
government’s supplemental excerpts of record containing the police report of
Ramirez’s arrest, because the document was not before the district court.
3