United States v. George Ramirez, Jr. , 667 F. App'x 667 ( 2016 )

FILED
NOT FOR PUBLICATION
JUL 29 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10523
Plaintiff-Appellee, D.C. No.
4:11-cr-02322-RCC-JR-1
v.
GEORGE RAMIREZ, Jr., AKA George MEMORANDUM*
Ramirez,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding
Submitted May 26, 2016**
San Francisco, California
Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this comeback case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
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When this case was last before us, we vacated George Ramirez’s sentence
and remanded for the district court to make “express factual findings” in
addressing Ramirez’s sentencing entrapment argument. United States v. Ramirez,
619 F. App’x 615, 617 (9th Cir. 2015). The district court made the required
findings on remand, and Ramirez now challenges those findings on appeal. We
affirm. The district court’s findings were not clearly erroneous and the court did
not abuse its discretion by rejecting Ramirez’s sentencing entrapment argument.
See United States v. Black, 733 F.3d 294, 301–02 (9th Cir. 2013).
Sentencing entrapment occurs when a defendant, “although predisposed to
commit a minor or lesser offense, is entrapped in committing a greater offense
subject to greater punishment.” United States v. Yuman-Hernandez, 712 F.3d 471,
474 (9th Cir. 2013); see also United States v. Mejia, 559 F.3d 1113, 1118 (9th Cir.
2009). When the underlying crime involves a drug sting, the defendant must show
that he “lacked the intent and capability” to possess the larger quantity of drugs.
United States v. Biao Huang, 687 F.3d 1197, 1203 (9th Cir. 2012).
Ramirez failed to make that showing here. In recorded conversations,
Ramirez agreed to steal 500 pounds of marijuana and 10 kilograms of cocaine. He
argues that he was not predisposed to possess the cocaine because, although he had
a criminal history for drug dealing, he had only dealt with marijuana. Despite
Page 3 of 3
having several opportunities to object to the inclusion of the cocaine, however,
Ramirez never did so. Nor did he inform his parole officer that the government’s
informant was pressuring him to engage in criminal activity that he did not want to
commit. And although Ramirez expected that the storage unit would contain
cocaine, he did not hesitate to carry out the theft. The district court therefore
correctly rejected Ramirez’s sentencing entrapment argument.
AFFIRMED.