United States v. Aaron Ramos ( 2017 )


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  •                                   NOT FOR PUBLICATION                           FILED
                                                                                    DEC 11 2017
                               UNITED STATES COURT OF APPEALS
                                                                                MOLLY C. DWYER, CLERK
                                                                                  U.S. COURT OF APPEALS
                                      FOR THE NINTH CIRCUIT
    
    
          UNITED STATES OF AMERICA,                        No.    16-50134
    
                        Plaintiff-Appellee,                D.C. No.
                                                           2:13-cr-00403-CAS-1
              v.
    
          AARON RAMOS, AKA Droopy,                         MEMORANDUM*
    
                        Defendant-Appellant.
    
    
                             Appeal from the United States District Court
                                 for the Central District of California
                             Christina A. Snyder, District Judge, Presiding
    
                                Argued and Submitted December 6, 2017
                                         Pasadena, California
    
          Before: CANBY and REINHARDT, Circuit Judges, and BLOCK,** District
          Judge.
    
    
    
    
          *
                 This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
          **
                 The Honorable Frederic Block, United States District Judge for the Eastern
    District of New York, sitting by designation.
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          Aaron Ramos (“Ramos”) appeals his convictions and sentence for
    
    distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and
    
    conspiracy to commit this offense, in violation of 21 U.S.C. § 846. We have
    
    jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm his
    
    convictions, vacate his sentence, and remand for resentencing.
    
          1. The district court did not abuse its discretion by denying Ramos’s motion
    
    for mistrial or new trial based on five instances of alleged prosecutorial
    
    misconduct. See United States v. Washington, 
    462 F.3d 1124
    , 1135 (9th Cir.
    
    2006). The district court properly concluded that three of these instances—
    
    misstating the testimony of Ramos’s mother and the defense translator, and
    
    misrepresenting the “proof beyond a reasonable doubt” standard through an inapt
    
    analogy—while improper, were harmless. “Under harmless error review, . . .
    
    reversal is justified only if it appears more probable than not that prosecutorial
    
    misconduct materially affected the fairness of the trial.” United States v. Ruiz, 
    710 F.3d 1077
    , 1082 (9th Cir. 2013) (quotation marks omitted). Whatever prejudice
    
    was caused by the prosecutor’s misconduct was “neutralized” by the district
    
    court’s curative instructions and admonitions as well as curative steps taken by
    
    both parties. United States v. Navarro, 
    608 F.3d 529
    , 535-36 (9th Cir. 2010).
    
    
    
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    Accordingly, we find these instances of misconduct harmless both individually and
    
    cumulatively.
    
          The district court also did not abuse its discretion by concluding that the
    
    prosecutor did not improperly shift the burden to Ramos. The rhetorical questions
    
    posed by the prosecutor were “intended to highlight the weaknesses” of Ramos’s
    
    case and the prosecutor “[did] not argue that a failure to explain [those questions]
    
    adequately requires a guilty verdict . . . .” United States v. Tucker, 
    641 F.3d 1110
    ,
    
    1120-21 (9th Cir. 2011) (quotation marks omitted). In addition, both the district
    
    court and the prosecutor “reiterate[d] that the burden of proof is on the
    
    government.” Id.
    
          Finally, it was not plain error to conclude that the prosecutor did not
    
    improperly disparage defense counsel. The comments in question—that the
    
    defense “didn’t want to show you” a damaging piece of evidence—“were directed
    
    to the strength of the defense on the merits,” not defense counsel herself. United
    
    States v. Ruiz, 
    710 F.3d 1077
    , 1086 (9th Cir. 2013) (quotation marks omitted).
    
          2. Ramos also argues that the district court erred by excluding under Federal
    
    Rule of Evidence 801(d)(2) the government’s prior statement in his co-defendant’s
    
    sentencing memorandum that she was a “source” of methamphetamine, an
    
    admission he contends would have supported his defense. Assuming without
    
                                              3
    deciding that it was error to exclude the statement under Rule 801(d)(2) and as
    
    irrelevant, this error was harmless. The prosecutor emphasized throughout his
    
    closing the state’s theory of the alleged conspiracy: Ramos connected potential
    
    customers to his co-defendant and his co-defendant actually obtained and
    
    distributed the drugs. In light of the prosecutor’s representations, additional
    
    evidence suggesting that his co-defendant was a source of methamphetamine
    
    would not have made a difference.
    
          Therefore, we affirm Ramos’s convictions.
    
          3. Turning to Ramos’s sentence, we conclude that the district court erred by
    
    failing to personally invite Ramos to allocute at his sentencing hearing. Under
    
    Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), the district court “must . . .
    
    address the defendant personally in order to permit the defendant to speak or
    
    present any information to mitigate the sentence.” Before sentencing Ramos, the
    
    district court stated, “Obviously, I do want to hear from Mr. Ramos if he wishes to
    
    be heard. No?” Defense counsel responded, “We can move forward, Your
    
    Honor.” This was plain error.
    
          Rule 32 “clearly provides that the court shall address the defendant
    
    personally and invite him to respond with a statement bearing on mitigation of
    
    punishment.” United States v. Navarro-Flores, 
    628 F.2d 1178
    , 1184 (9th Cir.
    
                                              4
    1980) (emphasis added). The district court’s use of the third person and defense
    
    counsel’s response suggests that court addressed counsel rather than Ramos. It
    
    was error for the district court not to “unambiguously address” Ramos. See Green
    
    v. United States, 
    365 U.S. 301
    , 305 (1961).
    
          An error is “plain” where the “plain language” and “express command” of
    
    Rule 32 required the court to do something it did not do. United States v. Joseph,
    
    
    716 F.3d 1273
    , 1280 (9th Cir. 2013) (quoting United States v. Waknine, 
    543 F.3d 546
    , 552-53 (9th Cir. 2008)). Because the district court did not do something it
    
    was required to do by Rule 32’s “express command,” this error was plain.
    
          This error also affected Ramos’s “substantial rights.” “[O]ur precedents are
    
    quite clear: when a district court could have lowered a defendant’s sentence, we
    
    have presumed prejudice and remanded, even if we doubted that the district court
    
    would have done so.” United States v. Gunning, 
    401 F.3d 1145
    , 1149 (9th Cir.
    
    2005). Here, there was no mandatory minimum sentence; therefore, the district
    
    court could have lowered Ramos’s sentence.
    
          Finally, this error “seriously affect[ed] the fairness, integrity, or public
    
    reputation of judicial proceedings.” Joseph, 716 F.3d at 1281. We “regularly
    
    deem[] the fourth prong of the plain error standard to have been satisfied where, as
    
    here, the sentencing court committed a legal error that may have increased the
    
                                               5
    length of a defendant’s sentence.” Id. (quotation marks omitted). In addition,
    
    allocution plays a central role in the sentencing process: “The right to allocute, and
    
    to be told that allocution is an option, is both important to the person being
    
    sentenced and fundamental to our criminal justice system.” United States v.
    
    Daniels, 
    760 F.3d 920
    , 926 (9th Cir. 2014). Therefore, we vacate Ramos’s
    
    sentence and remand for resentencing.
    
          4. Because we vacate Ramos’s sentence on this ground, we do not reach his
    
    argument that the district court erred under Federal Rule of Criminal Procedure
    
    32(i)(3)(B) by failing to rule on his request for a mitigating role adjustment under
    
    U.S.S.G. § 3B1.2. We note, however, that on remand, the district court should
    
    ensure that it has, as required “for any disputed portion of the presentence report,”
    
    “rule[d] on the dispute or determine[d] that a ruling is unnecessary either because
    
    the matter will not affect sentencing, or because the court will not consider the
    
    matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). We require “strict compliance
    
    with Rule 32” and have held that the rulings must be “express or explicit.” United
    
    States v. Doe, 
    705 F.3d 1134
    , 1153 (9th Cir. 2013).
    
    AFFIRMED IN PART, VACATED IN PART, and REMANDED.
    
    
    
    
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