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 2023-04

United States v. Demetrius Ramos ( 2023 )


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  •                             NOT FOR PUBLICATION                             FILED
UNITED STATES COURT OF APPEALS                         APR 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                         No.    21-10184
Plaintiff-Appellee,              D.C. No.
4:20-cr-00051-JAS-DTF
v.
DEMETRIUS VERARDI RAMOS, AKA                      MEMORANDUM*
Demetrius Ramos,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted November 18, 2022*
Phoenix, Arizona
Before: BYBEE, OWENS, and COLLINS, Circuit Judges.
Demetrius Ramos appeals from his jury conviction and sentence for one
count of conspiracy to transport, for profit, noncitizens who have entered or remain
in the United States unlawfully, four counts of harboring such noncitizens for
profit, and three counts of transportation of such noncitizens for profit, all in
violation of
    8 U.S.C. § 1324
    . We have jurisdiction pursuant to
    28 U.S.C. § 1291
    .
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
As the parties are familiar with the facts, we do not recount them here. We affirm
in part, vacate in part, and remand.1
1.     Ramos challenges the district court’s denial of his motion to suppress
evidence, arguing that the district court erred by holding that he was not “in
custody” for Miranda purposes. We review whether a defendant was “in custody”
de novo and any underlying factual findings for clear error. United States v. IMM,
    747 F.3d 754
    , 766 (9th Cir. 2014) (citation omitted).
A person detained during a Terry stop is generally not “in custody” for
Miranda purposes. Berkemer v. McCarty,
    468 U.S. 420
    , 439-40 (1984) (citing
Terry v. Ohio,
    392 U.S. 1
     (1968)). Although a Terry stop may require Miranda
warnings if the questioning goes “beyond a brief Terry-type inquiry,” United
States v. Kim,
    292 F.3d 969
    , 976 (9th Cir. 2002), such is not the case where, as
here, questioning is limited to the suspect’s name, date of birth, and citizenship
status. See Berkemer,
    468 U.S. at 439
    ; see also United States v. Brignoni-Ponce,
    422 U.S. 873
    , 881-82 (1975) (holding that an officer with reasonable suspicion that
a car contains undocumented individuals may “question the driver and passengers
about their citizenship and immigration status”). Although the stop lasted about an
1
Ramos also challenges the district court’s denial of his motion to suppress on
voluntariness grounds and adoption of the magistrate judge’s report and
recommendation. We affirm the district court’s decision in a concurrently filed
published opinion.
2
hour, border patrol agents diligently pursued their investigation of the
circumstances that led to the stop. See United States v. Sharpe,
    470 U.S. 675
    , 687
(1985). Ramos also contributed to the delay by refusing to provide his driver’s
license and by calling his attorney and a friend. See
    id. at 687-88
    ; see also United
States v. Richards,
    500 F.2d 1025
    , 1029 (9th Cir. 1974) (finding that an hour-long
delay caused by the defendant’s evasive responses to legitimate police inquiries
was reasonable). Accordingly, the district court did not err in finding that Ramos
was not “in custody” for Miranda purposes at the time he requested to speak to an
attorney.
2.     Next, the parties agree that the district court erred by imposing a
special condition of supervised release in its written judgment that was not
pronounced at the sentencing hearing. The written judgment requires Ramos to
“participate as instructed by the probation officer in a program of substance abuse
treatment (outpatient and/or inpatient) which may include testing for substance
abuse” and to “contribute to the cost of treatment in an amount to be determined by
the probation officer.” At the sentencing hearing, however, the district court made
no mention of a substance abuse treatment program. Accordingly, we vacate and
remand so the district court can make the written judgment consistent with the oral
pronouncement. See United States v. Hernandez,
    795 F.3d 1159
    , 1169 (9th Cir.
2015) (“When there is a discrepancy between an unambiguous oral pronouncement
3
of a sentence and the written judgment, the oral pronouncement controls.” (citation
omitted)).
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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