United States v. Ramiro Ramos-Medina , 682 F.3d 852 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 09-50408
Plaintiff-Appellee,
v.  D.C. No.
3:08-cr-03418-JM-1
RAMIRO RAMOS-MEDINA,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted
March 8, 2012—Pasadena, California
Filed June 21, 2012
Before: Jerome Farris, Richard R. Clifton, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Clifton
7301
UNITED STATES v. RAMOS-MEDINA 7303
COUNSEL
Vincent J. Brunkow, Federal Defenders of San Diego, Inc.,
San Diego, California, for the appellant.
Luara E. Duffy, Bruce E. Castetter, Charlotte E. Kaiser
(argued), U.S. Attorney’s Office, San Diego, California, for
the appellee.
7304 UNITED STATES v. RAMOS-MEDINA
OPINION
CLIFTON, Circuit Judge:
Ramiro Ramos-Medina appeals from his conviction and
sentence for illegally re-entering the United States after previ-
ously having been deported. We conclude that Ramos’s prior
conviction for burglary under California Penal Code § 459
qualified as a crime of violence under the immigration laws
and for sentencing purposes. We also hold that the district
court did not err in denying Ramos a two-level downward
adjustment for acceptance of responsibility under Sentencing
Guidelines § 3E1.1(a). We distinguish the district court’s
denial of an acceptance of responsibility adjustment here from
cases in which district courts interpreted the Guidelines to for-
bid the award of such an adjustment to any defendant who
forces the government to prove his guilt at trial. See United
States v. Cortes, 299 F.3d 1030, 1038 (9th Cir. 2002); United
States v. Ochoa-Gaytan, 265 F.3d 837, 842-43 (9th Cir.
2001). We affirm.
I. Background
In 2007, Ramos pled guilty to a charge of first-degree resi-
dential burglary under California Penal Code § 459. The court
sentenced him to two years in prison.
Immigration officers determined that Ramos’s conviction
qualified as a “crime of violence” under 8 U.S.C. § 16(b) and
was thus an “aggravated felony” under the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1101(a)(43)(F);
1227(a)(2)(A)(iii). They explained to Ramos that this meant
he could be removed to Mexico under an administrative order
without appearing before an Immigration Judge. See 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1228(b). They also explained to Ramos
that this procedure made him ineligible for discretionary relief
from removal. See 8 U.S.C. § 1228(b)(5). Ramos signed a
form acknowledging that he did not wish to contest his depor-
UNITED STATES v. RAMOS-MEDINA 7305
tation and did not wish to seek withholding of removal. A
Final Administrative Removal Order was issued, and Ramos
was taken to the Mexican border and released.
Five days later, Border Patrol agents apprehended Ramos
on the United States side of the border. Ramos admitted that
he had illegally crossed back into the United States. He was
charged with violating 8 U.S.C. § 1326, which makes it a
crime for any alien who has been deported to re-enter the
United States without permission.
Ramos moved to dismiss the indictment. He argued that his
California burglary conviction did not qualify as a conviction
for an aggravated felony and that it had therefore been
improper for the immigration authorities to deport him via the
expedited administrative process and to tell him that he was
not eligible for discretionary relief. The district court held that
his conviction for burglary under California law did qualify as
an aggravated felony and denied Ramos’s motion. Ramos was
tried before a jury and convicted.
The district court calculated the Sentencing Guidelines
range. It determined that a base offense level of eight applied
to Ramos’s conviction. It applied a 16-level enhancement
under Guidelines § 2L1.2(b)(1)(A) because it determined that
Ramos’s prior burglary conviction qualified as a “crime of
violence.” The district court considered but rejected a two-
level downward adjustment for acceptance of responsibility.
It reasoned that
upon apprehension Mr. Ramos did admit the ele-
ments of the conviction; however, this case went to
a full-blown jury trial, and, importantly, I think the
defense vigorously in its examination of adverse wit-
nesses and in its argument to the jury challenged the
deportation removal element.
7306 UNITED STATES v. RAMOS-MEDINA
See U.S.S.G. § 3E1.1(a). Given the adjusted offense level of
24 and Ramos’s criminal history level of V, the Guidelines
suggested a sentence of 92 to 115 months.
The district court identified several reasons for a shorter
sentence, however. One of the reasons was that “at the time
of Mr. Ramos’s apprehension, he had the right instincts by
essentially admitting the elements, coming to terms with his
case and cooperating with the authorities, and admitting that
he was a deported alien found in the United States.” The dis-
trict court characterized this final reason as going “generally
to the acceptance of responsibility you were talking about,
although not expressly acceptance of responsibility” for the
purposes of the two-level downward adjustment. The district
court settled on a sentence of 42 months.1
II. Discussion
We review de novo the district court’s denial of Ramos’s
motion to dismiss his indictment based on alleged defects in
his deportation. See United States v. Muro-Inclan, 249 F.3d
1180, 1182 (9th Cir. 2001). We review de novo the district
court’s interpretation of the Sentencing Guidelines. See
United States v. Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).
We review for clear error the district court’s finding that
Ramos did not accept responsibility for his crime. See id.
A. Ramos’s Prior Deportation
Ramos argues that his prior conviction for burglary under
California Penal Code § 4592 did not qualify as an “aggra-
1
The district court concluded that Ramos’s final sentence could be justi-
fied either as a downward departure under Guidelines § 5K2.0 or as a
below-Guidelines sentence based on the district court’s discretion under
United States v. Booker, 543 U.S. 220, 245 (2005) and the factors listed
in 18 U.S.C. § 3553(a).
2
That statute subjects to punishment “[e]very person who enters [vari-
ous enumerated structures] . . . with intent to commit grand or petit larceny
or any felony.” Cal. Penal Code § 459.
UNITED STATES v. RAMOS-MEDINA 7307
vated felony.” Ramos was removable irrespective of whether
his prior conviction was for an aggravated felony because he
had entered this country illegally. See 8 U.S.C.
§ 1227(a)(1)(B). The aggravated felony determination was
relevant, however, because it was a prerequisite to the immi-
gration authorities’ decision to deport Ramos via the expe-
dited administrative removal procedure and their
determination that he was not eligible for discretionary relief.
See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1228(b), 1229c(a)(1);
United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir.
2000). Ramos argues that the district court should not have
allowed this tainted deportation to serve as the predicate to
criminal prosecution for post-deportation re-entry under 8
U.S.C. § 1326. See generally United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (describing
what a § 1326 defendant must prove to prevail in such a col-
lateral attack on his prior deportation).
[1] Our decisions in United States v. Becker, 919 F.2d 568
(9th Cir. 1990), and Lopez-Cardona v. Holder, 662 F.3d 1110
(9th Cir. 2011), establish that burglary under California Penal
Code § 459 is categorically a crime of violence and thus an
“aggravated felony” for the purposes of the INA. We there-
fore affirm Ramos’s conviction.
In Becker, we held that burglary under California Penal
Code § 459 qualified as a “crime of violence” under the Sen-
tencing Guidelines. 919 F.2d at 573. The defendant in Becker
had prior convictions for burglary under California Penal
Code § 459 when he was convicted of bank robbery. Id. at
570. The district court held that each of the prior convictions
counted as a “crime of violence” and sentenced the defendant
accordingly. Id. The Sentencing Guidelines in effect at the
time defined “crime of violence” by reference to 18 U.S.C.
§ 16. Id. at 569 (citing U.S.S.G. § 4B1.2 (1988)). Subsection
(b) of 18 U.S.C. § 16 provided that any offense “that is a fel-
ony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may
7308 UNITED STATES v. RAMOS-MEDINA
be used in the course of committing the offense” was a “crime
of violence.” Accordingly, we examined whether burglary
under California Penal Code § 459 by its nature involved a
substantial risk of force. Becker, 919 F.2d at 571. We rea-
soned that “[a]ny time a burglar enters a dwelling with feloni-
ous or larcenous intent there is a risk that in the course of
committing the crime he will encounter one of its lawful
occupants, and use physical force against that occupant either
to accomplish his illegal purpose or to escape apprehension.”
Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (bur-
glary is “[t]he classic example” of a felony that involves a
substantial risk of physical force under 18 U.S.C. § 16(b)).
We concluded that California burglary was a “crime of vio-
lence” under 18 U.S.C. § 16(b) and the then current Sentenc-
ing Guidelines. Becker, 919 F.2d at 573; see also Park, 649
F.3d at 1178-80.
After we decided Becker, the Sentencing Commission
removed the reference to 18 U.S.C. § 16 from the relevant
section of the Sentencing Guidelines and replaced it with the
Commission’s own definition of “crime of violence.” See
United States v. Aguila-Montes de Oca, 655 F.3d 915, 919
(9th Cir. 2011) (en banc) (citing U.S.S.G. § 2L1.2 cmt.
n.1(B)(iii)). Under the new definition, a crime is a “crime of
violence” if it is included in a categorical list of generic
“crimes of violence” or is some other “offense under federal,
state, or local law that has an element the use, attempted use,
or threatened use of physical force against the person of
another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Since crimes that
present merely a risk of force are not necessarily “crimes of
violence” under the new definition, the revision rendered
Becker inapplicable to sentencing for a violation of 8 U.S.C.
§ 1326. It did not, however, disturb Becker’s conclusion that
burglary under § 459 qualifies as a “crime of violence” for the
purposes of 18 U.S.C. § 16(b) and other statutes that incorpo-
rate 18 U.S.C. § 16(b) by reference, including the INA.
We recognized the continued vitality of Becker as a con-
struction of the INA in Lopez-Cardona, 662 F.3d at 1112-13.
UNITED STATES v. RAMOS-MEDINA 7309
The petitioner in Lopez-Cardona, like the defendants in
Becker, had been convicted of burglary under § 459. Id. at
1111. The Immigration Judge and Board of Immigration
Appeals determined that this conviction qualified as a “crime
of violence” under 18 U.S.C. § 16(b), and that the petitioner
was therefore ineligible for withholding of removal. Id. at
1112. On appeal, we considered whether our decision in
Aguila-Montes that burglary under § 459 was not categori-
cally a “crime of violence” under the current version of the
Sentencing Guidelines overruled Becker’s holding that such
burglary was categorically a crime of violence under 18
U.S.C. § 16(b). Id. at 1112-13. We reasoned that our recogni-
tion in Aguila-Montes that § 459’s unlawfulness requirement
was different than federal generic burglary’s unlawfulness
requirement did not change the fact that the conduct prohib-
ited by § 459 involved a substantial risk of force. Every viola-
tion of § 459 might not present that level of risk, but “the
proper inquiry for the categorical approach is whether the
conduct covered by the crime presents the requisite risk of
injury ‘in the ordinary case.’ ” Id. at 1112 (quoting James v.
United States, 550 U.S. 192, 208 (2007); see also United
States v. Park, 649 F.3d 1175, 1179-80 (9th Cir. 2011) (hold-
ing that § 459 is categorically a “crime of violence” under
Guidelines § 4B1.2(a)(2) because “the usual or ordinary first-
degree burglary in California involves conduct that presents
a serious risk of physical violence and injury to others”). Con-
sequently, we concluded that Becker’s construction of 18
U.S.C. § 16(b) remained good law in the immigration context
and made the petitioner ineligible for withholding of removal.
Id.
We recently reached an identical result in Chuen Piu
Kwong v. Holder, 671 F.3d 872, 877-78 (9th Cir. 2011). In
that case, as in Lopez-Cardona, the petitioner argued that
Aguila-Montes implied that a conviction under § 459 is no
longer a “crime of violence” under the INA. Id. at 877. Again,
however, we recognized that Aguila-Montes “did not contra-
dict or affect Becker’s holding that first-degree burglary under
7310 UNITED STATES v. RAMOS-MEDINA
§ 459 is a crime of violence because it involves a substantial
risk that physical force may be used in the course of commit-
ting the offense.” Id. at 878 (citing Lopez-Cardona, 662 at
1113).
Like the defendant in Becker and the petitioners in Lopez-
Cardona and Kwong, Ramos was convicted for burglary
under California Penal Code § 459. And just as in those cases,
we conclude that the conviction is a “crime of violence” under
18 U.S.C. § 16(b) because the crime of burglary involves a
substantial risk of harm in the ordinary case. See, e.g., Park,
649 F.3d at 1179-80.
Ramos argues that we should not consider ourselves bound
by the decisions in Lopez-Cardona and Kwong because he
presents a different argument than did the petitioners in those
cases. In support of that proposition he cites Webster v. Fall,
266 U.S. 507, 511 (1925) (“Questions which merely lurk in
the record, neither brought to the attention of the court nor
ruled upon, are not to be considered as having been so
decided as to constitute precedents.”). See also, e.g., Galam
v. Carmel (In re Larry’s Apartment, L.L.C.), 249 F.3d 832,
839 (9th Cir. 2001) (holding that a question lurked in the
record of a previous case because “we had no occasion to
consider” it). The continuing vitality of Becker was not an
issue that “merely lurk[ed] in the record” of Lopez-Cardona
and Kwong, however. That was the central question.
We are bound by the decisions in Lopez-Cardona and
Kwong. There has been no change in the relevant statutes or
regulations, nor in any governing authority, notably an inter-
vening decision of the Supreme Court.3 Absent such a change,
3
Both Lopez-Cardona and Kwong were decided after Aguila-Montes
and the California decisions Ramos cites: People v. Parson, 187 P.3d 1,
17 (Cal. 2008); People v. Cole, 67 Cal. Rptr. 3d 526, 529, 540 (Cal. Ct.
App. 2007); People v. Nguyen, 46 Cal. Rptr. 2d 840, 841, 844 (Cal. Ct.
App. 1995); People v. Felix, 28 Cal. Rptr. 2d 860, 867 (Cal. Ct. App.
1994); People v. Salemme, 3 Cal. Rptr. 2d 398, 399, 402 (Cal. Ct. App.
1992).
UNITED STATES v. RAMOS-MEDINA 7311
only an en banc panel of our court may overrule or revise the
binding precedent established by a published opinion. As we
observed in Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc): “A goal of our circuit’s decisions, including
panel and en banc decisions, must be to preserve the consis-
tency of circuit law. The goal is codified in procedures gov-
erning en banc review. See 28 U.S.C. § 46; Fed. R. App. P.
35.” This panel is not free to disregard the decision of another
panel of our court simply because we think the arguments
have been characterized differently or more persuasively by
a new litigant.
To be sure, if we were persuaded by Ramos’s arguments,
we could ourselves ask our court to take the subject up en
banc, and that happens from time to time. See, e.g., Cyr v.
Reliance Standard Life Ins. Co., 642 F.3d 1202, 1205 (9th
Cir. 2011) (en banc). We have not, however, been persuaded
to take that course here. We affirm Ramos’s conviction.
B. Sentencing Adjustment For Aggravated Felony
Conviction
Ramos’s challenge to the enhancement of his sentence
based on his prior conviction for a “crime of violence”
requires us to apply the current Sentencing Guidelines’ defini-
tion of that term. The Guidelines’ Application notes define a
“crime of violence” to include “burglary of a dwelling” and
any other “offense under federal, state, or local law that has
an element the use, attempted use, or threatened use of physi-
cal force against the person of another.” U.S.S.G. § 2L1.2
cmt. n.1(B)(iii); Aguila-Montes, 655 F.3d at 919. As
explained in the previous section, because the residual clause
of this definition focuses on the “use, attempted use, or threat-
ened use of physical force” against a person, Becker’s holding
regarding crimes involving a mere risk of physical force is no
longer applicable.
[2] Instead, we must look to whether Ramos’s burglary
conviction qualified as a “burglary of a dwelling.” The
7312 UNITED STATES v. RAMOS-MEDINA
Supreme Court has held that the generic definition of burglary
“ha[s] the basic elements of unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.” Taylor v. United States, 495 U.S. 575, 599
(1990). As described above, we held in Aguila-Montes that a
conviction for burglary under California Penal Code § 459
does not categorically fall within that definition because “Cal-
ifornia’s definition of ‘unlawful or unprivileged entry,’ unlike
the generic definition, permits a conviction for burglary of a
structure open to the public and of a structure that the defen-
dant is licensed or privileged to enter.” 655 F.3d at 944.
Because a conviction under California Penal Code § 459 is
not categorically a “burglary of a dwelling” constituting a
“crime of violence,” we must therefore apply the modified
categorical approach to determine whether Ramos was in fact
convicted of all the elements of generic burglary. See id. at
945-46. We conclude that he was. We therefore affirm the
district court’s application of the crime of violence sentence
enhancement.
The modified categorical approach “ ‘permit[s] the sentenc-
ing court to go beyond the mere fact of conviction’ ” and look
at the judicial records of the defendant’s prior conviction. Id.
at 920 (quoting Taylor, 495 U.S. at 602). When a defendant
is convicted in conjunction with a guilty plea, the sentencing
court may look to “the statement of factual basis for the
charge . . . shown by a transcript of plea colloquy or by writ-
ten plea agreement presented to the court.” Shepard v. United
States, 544 U.S. 13, 20 (2005) (internal citation omitted).
When a defendant stipulates during his plea colloquy that a
police report, probation report or similar document contains
the factual basis for his plea, the court may also examine the
incorporated document. See id.; United States v. Almazan-
Becerra, 537 F.3d 1094, 1097-1100 (9th Cir. 2008); United
States v. Espinoza-Cano, 456 F.3d 1126, 1131-32 (9th Cir.
2006).
In applying the modified categorical approach, the court
may take into account only facts on which the defendant’s
UNITED STATES v. RAMOS-MEDINA 7313
conviction “necessarily rested.” Aguila-Montes, 655 F.3d at
935-36. That does not mean, however, that courts are limited
only to facts that show an element of the offense. Id. at 936-
40. As long as the prosecution’s theory of the case made proof
of a given fact “necessary” to the defendant’s conviction, that
fact is within the scope of the modified categorical approach,
irrespective of whether the fact is directly relevant to an ele-
ment of the offense or merely incidental. Id.
[3] During Ramos’s plea colloquy, Ramos and his attorney
confirmed that the admissions in Ramos’s probation report
formed the factual basis of Ramos’s guilty plea. Ramos
admitted to gaining entry to his neighbor’s apartment through
a window without permission or privilege, stealing some jew-
elry, and fleeing out the window when the neighbor returned.
These facts demonstrate that the neighbor’s apartment was not
open to the public and that Ramos was not licensed or privi-
leged to enter the apartment. Because Ramos’s conviction for
burglary “necessarily rested” on facts showing that he made
an unlawful or unprivileged entry into the apartment with
intent to commit a crime, Aguila-Montes, 655 F.3d at 941, we
conclude that Ramos was convicted of a “burglary of a dwell-
ing,” which is a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A). Accordingly, the district court’s application
of a sixteen-level sentencing enhancement was not erroneous.
C. Sentencing Adjustment for Acceptance of Responsibility
The Sentencing Guidelines allow district courts to grant a
two-level downward adjustment to a defendant who “clearly
demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). The defendant bears the burden of show-
ing that he has accepted responsibility for his actions. Cortes,
299 F.3d at 1038 (citing U.S.S.G. § 3E1.1(a)).
Ramos argues that the district court erroneously interpreted
the Sentencing Guidelines to forbid a downward adjustment
for acceptance of responsibility when a defendant pleads not
7314 UNITED STATES v. RAMOS-MEDINA
guilty and goes to trial. We disagree with Ramos’s character-
ization of the district court’s decision. The district court did
not base its denial of the adjustment on Ramos’s decision to
put the government to its proof alone, but searched Ramos’s
conduct as a whole to determine whether he nevertheless
accepted responsibility. We hold that this analysis met the
standard described in our previous cases.
[4] A guilty plea is one way a defendant can demonstrate
acceptance of responsibility, but it is not the only way. Cor-
tes, 299 F.3d at 1038. A defendant’s right to contest his guilt
before a jury is protected by the Constitution, and his decision
to do so “cannot be held against him.” Id. (citing United
States v. Vance, 62 F.3d 1152, 1157 (9th Cir. 1995)). Accord-
ingly, a defendant who puts the government to its proof may
still be eligible for a downward adjustment if, and only if, he
has “otherwise demonstrated sincere contrition.” Id.; see also
U.S.S.G. § 3E1.1, cmt. n.2 (2007); Ochoa-Gaytan, 265 F.3d
at 842-43; United States v. McKinney, 15 F.3d 849, 852 (9th
Cir. 1994).
We decided Ochoa-Gaytan, Cortes, and McKinney before
the Supreme Court’s opinion in Booker rendered the Guide-
lines advisory. 543 U.S. at 245. Booker makes the rule we
announced in those cases less urgent, for a defendant’s sen-
tence now ultimately depends on the district court’s judgment,
not on the defendant’s eligibility for certain sentencing range
adjustments prescribed by the Guidelines. Apart from the cal-
culation of the appropriate range under the advisory Guide-
lines, the sentencing court may consider acceptance of
responsibility separately in imposing a sentence, even if the
court determined that the defendant did not qualify for a for-
mal adjustment on those grounds under the Guidelines. This
case was an example of that. See U.S.S.G. § 5K2.0 (listing
grounds for departing from the otherwise-recommended
range); 18 U.S.C. § 3553(a) (listing factors on which district
courts may base a below-Guidelines sentence). As described
above, the district court imposed a sentence substantially
UNITED STATES v. RAMOS-MEDINA 7315
below the advisory guideline range in part because of
Ramos’s admissions.
Nevertheless, we continue to review whether the district
court correctly calculated the Guidelines range as the first step
in our review of criminal sentences. See United States v. Bar-
sumyan, 517 F.3d 1154, 1157 (9th Cir. 2008). Pursuant to this
task, we review how district courts have applied the accep-
tance of responsibility adjustment. See, e.g., United States v.
Garrido, 596 F.3d 613, 617-18 (9th Cir. 2010).
We vacated the sentence in Ochoa-Gaytan because we con-
cluded that the district court denied an acceptance of responsi-
bility adjustment based on the defendant’s decision to contest
the evidence against him at trial. 265 F.3d at 842. The court
ignored the fact that “at the time of [the defendant’s] arrest,
he did admit . . . his [immigration] status,” and “made no find-
ings concerning whether Ochoa-Gaytan demonstrated contri-
tion.” Id. at 842, 844 (internal quotations omitted). Instead, it
took into account only the fact that the defendant
“moved to suppress his statements. He went to trial.
The issue was factual guilt. It wasn’t to protect or
preserve some constitutional issues. I mean, it’s been
an all-out attack on his conviction. And I don’t see
how 3E1.1. acceptance applies. Basically, that is a
whole guideline inducement to facilitate pleading
guilty and to sweeten the pot.
...
[L]egally, I do not believe in any way that this
adjustment applies on this kind of case. . . .”
Id. at 842 (quoting the district court; alterations in Ochoa-
Gaytan). On appeal, we concluded that the district court mis-
takenly applied a per se bar against downward adjustment
based on the defendant’s decision to go to trial. Id. at 844.
7316 UNITED STATES v. RAMOS-MEDINA
Similarly, we concluded that the same mistake had been
made in Cortes. 299 F.3d at 1039. The sentencing court had
stated:
“In terms of acceptance of responsibility, I also find
that’s a legal issue, and that the defendant in putting
into question, and determination by the jury, the
issue of . . . specific intent . . . . And this Court does
not believe it is appropriate to award him any points
for acceptance of responsibility.”
Id. (quoting the district court). Because it appeared that “the
district court may have believed, as a matter of law, that Cor-
tes was ineligible for the reduction,” we vacated the defen-
dant’s sentence and remanded “to allow the district court to
fully explicate the issue in the first instance.” Id.
[5] In this case, the district court did not make the same
mistake of law. It noted the fact that “this case went to a full
blown jury trial,” but it also took into account other relevant
considerations, including the fact in Ramos’s favor that “upon
apprehension Mr. Ramos did admit the elements of the con-
viction.” It based its final decision on “the facts of this case
and on this particular record” as a whole. This was the correct
analytical approach. See Cortes, 299 F.3d at 1038.
Moreover, the district court’s ultimate decision that Peti-
tioner had not adequately accepted responsibility was not
clearly erroneous. “[A] defendant who . . . frivolously con-
tests[ ] relevant conduct that the court determines to be true
has acted in a manner inconsistent with acceptance of respon-
sibility.” U.S.S.G. § 3E1.1 cmt. n.1(A). Ramos contested the
fact and validity of his deportation at trial. The district court
asked Ramos’s counsel not to pursue this line of argument
any further because it “r[an] afoul of the in-limine motion
order with respect to the deportation order” and was not sup-
ported by any “offer of proof.” In addition, Ramos disputed
during trial and in a motion for judgment of acquittal that he
UNITED STATES v. RAMOS-MEDINA 7317
ever re-entered the United States. The court denied the
motion, holding that “[t]he evidence is rather overwhelming
that . . . the defendant was detected and detained” in the
United States. On this record, the district court did not clearly
err in finding that Ramos’s actions were inconsistent with
acceptance of responsibility. Accordingly, we affirm Ramos’s
sentence.
AFFIRMED.