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 2018-07

United States v. Gilberto Ramos ( 2018 )


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  •                  United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-3680
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Gilberto Ray Ramos
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: July 5, 2018
Filed: July 31, 2018
[Unpublished]
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Before WOLLMAN, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
After this court vacated a firearm conviction and remanded for resentencing,
United States v. Ramos,
    852 F.3d 747 
    (8th Cir. 2017), the district court1 conducted
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
a hearing and sentenced Gilberto Ramos to a total of 135 months in prison, at the
bottom of the Guidelines range calculated for his remaining jury-trial convictions for
conspiracy, distribution of methamphetamine, and possession with intent to distribute
methamphetamine, see 21 U.S.C. §§ 841(a)(1) and 846. Ramos appeals, and his
counsel has filed a brief under Anders v. California,
    386 U.S. 738 
    (1967), challenging
application of a sentence enhancement for his possession of a firearm under United
States Sentence Guidelines § 2D1.1(b)(1), despite this court’s reversal of his
conviction for being a felon in possession of a firearm.
A summary of the trial evidence, which was sufficient to support Ramos’s drug
convictions, is included in this court’s earlier decision. See
    Ramos, 852 F.3d at 750-51
    . In part, the evidence established that Ramos received and distributed
methamphetamine from his two-bedroom apartment in Springdale, Arkansas, and that
officers who searched the apartment, which Ramos shared with a woman, found a
ledger, a digital scale, baggies, cash, and methamphetamine in the kitchen; and found
a .45 caliber pistol under the mattress in one of the bedrooms, the closet for which
contained men’s and women’s clothing. The district court, in resentencing Ramos on
his drug-related convictions, overruled his challenge to application of the two-level
section 2D1.1(b) enhancement for his possession of a firearm, finding that a
preponderance of the evidence established it was not clearly improbable that the
weapon was connected to the drug-trafficking activity. Upon careful review, we
conclude that the district court did not clearly err, see United States v. Anderson,
    618 F.3d 873
    , 879-82 (8th Cir. 2010); States v. Mendoza,
    341 F.3d 687
    , 694 (8th Cir.
2003); United States v. Braggs,
    317 F.3d 901
    , 904-05 (8th Cir. 2003),
notwithstanding the sentencing court’s consideration of acquitted conduct, see United
States v. Watts,
    519 U.S. 148
    , 156 (1997) (per curiam). We also conclude that the
district court’s imposition of a sentence at the bottom of the Guidelines range was not
substantively unreasonable. See United States v. Cromwell,
    645 F.3d 1020
    , 1022 (8th
Cir. 2011).
-2-
After reviewing the record independently under Penson v. Ohio,
    488 U.S. 75 
    (1988), we find no non-frivolous issues for appeal. The judgment of the district court
is affirmed, and counsel’s motion to withdraw is granted.
______________________________
-3-