United States v. Ramos , 163 F. App'x 336 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 23, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40567
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT CARLOS RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
The United States Supreme Court granted defendant-appellant Robert Carlos Ramos’s
petition for certiorari, vacated this court’s previous judgment, and remanded the case to this court
for consideration in light of its ruling in United States v. Booker, 125 S. Ct. 738 (2005). See Ramos
v. United States, 125 S. Ct. 1031 (2005).
*
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
PROCEDURAL HISTORY
Robert Carlos Ramos pled guilty to possession with intent to distribute cocaine, in
contravention of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court sentenced him to 84 months
of incarceration, which was at the low-end of the applicable 84-105 month range under the U. S.
Sentencing Guidelines (hereinafter “U.S.S.G.”). He appealed his sentence, challenging the district
court’s factual findings as to quantity of drugs ascribed to him in the Presentence Report, and on the
ground that 21 U.S.C. § 841 was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466(2000). This court affirmed Ramos’s sentence, but in response to Ramos’s petition for writ of
certiorari the Supreme Court granted the petition, vacated that judgment and remanded the case to
this court for consideration in light of its ruling in United States v. Booker, 543 U.S. 220 (2005). See
United States v. Ramos, 96 Fed. Appx. 246 (5th Cir. May 6, 2004) (en banc), vacated, Ramos v.
United States, 125 S. Ct. 738 (2005).
CONSIDERATION OF RAMOS’S SENTENCE IN LIGHT OF BOOKER
Pursuant to our instructions, the parties filed briefs which discuss the impact of Booker upon
Ramos’s 84-month sentence. Ramos concedes that he did not preserve any error that would be
cognizable under Booker, given that he did not previously argue that the district court granted an
upward departure based on facts that were not proven to a jury beyond a reasonable doubt, and did
not challenge the fact that he was sentenced under federal sentencing guidelines that were understood
to be mandatory. See Booker, 125 S. Ct. at 756-765 (2005). Moreover, Ramos recognizes that, given
his failure to preserve t hese claims, his 84-month term of incarceration will be reviewed for plain
error.
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Our plain error inquiry involves four related prongs: (1) there must have been an error; (2)
that was clear and obvious; and (3) said error affected the substantial rights of the defendant. United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), cert. denied, Mares v. United States, 126 S. Ct.
43 (2005). Finally, once the foregoing elements are satisfied, the reviewing court may exercise its
discretion to find plain error only if: (4) the error seriously affected “the fairness, integrity, or public
reputation of the judicial proceedings.” Id.Our review of the record reveals that, even if we assume, arguendo, that Ramos established
the first two prongs in the plain error analysis, he has not established that his substantial rights have
been affected. Ramos maintains that the district court felt const rained by the U.S.S.G. and only
sentenced him to an 84-month term because it was the minimum term allowed by the mandatory
guidelines. He notes, for example, that the sentencing judge stated during Ramos’s sentencing hearing
that the imposition of an 84-month sentence “conformed to the mandates of the Sentencing
Guidelines.” Ramos interprets this statement to mean that there was a reasonable likelihood that, but
for the mandatory nature of the U.S.S.G., he would have received a significantly lesser sentence.
We have recognized post-Booker that even in the context of plain error review, where the
record plainly manifests that the district judge would have imposed a sentence below the defendant’s
applicable sentencing range had he been free to do so, that sentence may be vacated. See United
States v. Pennell, 409 F.3d 240, 246 (5th Cir. 2005) (“[W]e are persuaded that it is likely that if the
district court thought he was at liberty . . . he would have arrived at a lesser sentence.”).
Nevertheless, the instant record does not suggest that, had the district court understood the U.S.S.G.
to be advisory rather than mandatory, it would have imposed a sentence of imprisonment less than
84 months. See United States v. Infante, 404 F.3d 376, 394-95 (5th Cir.2005).
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The fact that Ramos was sentenced at the bottom of the applicable U.S.S.G. range does not
establish ipso facto that, absent the mandatory nature of the guidelines, the district court would have
imposed a lesser sentence. See United States v. Hernandez-Gonzalez, 405 F.3d 260, 262 (5th Cir.
2005). Standing alone, this fact neither indicates that the district court deemed a lesser sentence more
just, nor shows that Ramos’s substantial rights have been affected. Likewise, the district court’s
statement that the sentence imposed conformed to the U.S.S.G. sheds no light on whether a lesser
sentence otherwise would have been imposed. Thus, even were we to assume that Ramos’s
interpretation is correct, such reasonable likelihood does not satisfy the third prong of the plain error
analysis without some indication, plainly manifested in the record, that the sentencing court would
have imposed a lesser sentence. Accordingly, Ramos’s sentence is AFFIRMED.
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