USA v. Cesar Ramirez-Mata

Filing

UNPUBLISHED OPINION FILED. [09-40877 Affirmed ] Judge: RHB , Judge: JLD , Judge: CH Mandate pull date is 01/12/2011 for Appellant Cesar Ramirez-Mata [09-40877]

USA v. Cesar Ramirez-Mata09-40877 Case:

Document: 00511329794 Page: 1 Date Filed: 12/22/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 22, 2010 N o . 09-40877 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. C E S A R RAMIREZ-MATA D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Southern District of Texas U S D C No. 2:09-CR-267-1

B e fo r e BARKSDALE, DENNIS, and HAYNES, Circuit Judges. P E R CURIAM:* C e s a r Ramirez-Mata pleaded guilty to one count of conspiracy to p o s s e s s with intent to distribute less than 50 kilograms of marijuana and one c o u n t of possession with intent to distribute less than 50 kilograms of m a r iju a n a , in violation of 21 U.S.C. § 841. He was sentenced to two 46-month t e r m s of imprisonment, to run concurrently, to be followed by two three-year t e r m s of supervised release, also to run concurrently. He now appeals his s e n te n c e , arguing that the district court erred in its calculation of the
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Case: 09-40877 Document: 00511329794 Page: 2 Date Filed: 12/22/2010

No. 09-40877 a d v is o r y sentencing range by treating him as a career offender under U .S .S .G . § 4B1.1. Under that guideline, "[a] defendant is a career offender if," in t e r alia, he "has at least two prior felony convictions of either a crime of v io le n c e or a controlled substance offense." Id. § 4B1.1(a). Ramirez-Mata a r g u e s that the district court erred when it treated his prior offense under T e x . Penal Code § 22.011(a)(2) as a crime of violence, because that statute " p r o h ib it [s ] consensual sexual contact with, or penetration of, a person under 1 7 years old." United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004). Without that prior offense, he would not have qualified as a career offender. B e c a u s e Ramirez-Mata's counsel failed to raise this issue in the district c o u r t, it is reviewed for plain error. See Puckett v. United States, 129 S. Ct. 1 4 2 3 , 1429 (2009) (citing Fed. R. Crim. P. 52(b)). R u le 52(b) review -- so-called "plain-error review" -- involves fo u r steps, or prongs. First, there must be an error or defect -- s o m e sort of "deviation from a legal rule" -- that has not been in t e n t io n a lly relinquished or abandoned, i.e., affirmatively w a iv e d , by the appellant. [United States v. Olano, 507 U.S. 725, 7 3 2 -3 3 (1993).] Second, the legal error must be clear or obvious, r a t h e r than subject to reasonable dispute. [See id. at 734.] Third, t h e error must have affected the appellant's substantial r ig h t s . . . . Fourth and finally, if the above three prongs are s a t is fie d , the court of appeals has the discretion to remedy the e r r o r -- discretion which ought to be exercised only if the error "seriously affects the fairness, integrity or public reputation of ju d ic ia l proceedings." [Id. at 736 (quoting United States v. A tk in s o n , 297 U.S. 157, 160 (1936)).] P u c k e tt, 129 S. Ct. at 1429. We will assume for the sake of argument that the d is t r ic t court made an error that was clear or obvious, because we conclude t h a t Ramirez-Mata does not satisfy the third prong. A t the third prong of plain error review, when a sentencing error is at is s u e , a defendant must "show that the error affected his substantial rights b y `undermin[ing] confidence in the outcome.'" United States v. Blocker, 612 2

Case: 09-40877 Document: 00511329794 Page: 3 Date Filed: 12/22/2010

No. 09-40877 F .3 d 413, 416 (5th Cir.) (per curiam) (alteration in original) (quoting United S ta te s v. Dominguez Benitez, 542 U.S. 74, 83 (2004) (in turn quoting S tr ic k la n d v. Washington, 466 U.S. 668, 694 (1984))), cert. denied, 2010 WL 4 1 5 6 1 7 9 (2010). "[T]his requires demonstrating a `reasonable probability t h a t , but for the district court's misapplication of the Guidelines, [the d e fe n d a n t ] would have received a lesser sentence.'" Id. (quoting United States v . Villegas, 404 F.3d 355, 364 (5th Cir. 2005)). Ramirez-Mata does not have t o show by a preponderance of the evidence that he would have received a lo w e r sentence if the district court had not misapplied the sentencing g u id e lin e s . "The reasonable-probability standard is not the same as, and s h o u ld not be confused with, a requirement that a defendant prove by a p r e p o n d e r a n c e of the evidence that but for error things would have been d iffe r e n t ." Dominguez Benitez, 542 U.S. at 83 n.9 (citing Kyles v. Whitley, 514 U .S . 419, 434 (1995)). B e c a u s e the district court treated Ramirez-Mata's prior conviction as a c r im e of violence, it classified him as a career offender under U.S.S.G. § 4B1.1. This had no effect on his offense level, which was calculated at 15 b a s e d on the quantity of marijuana involved and a reduction for acceptance of r e s p o n s ib ilit y ; however, the career offender designation did set his criminal h is t o r y category at VI when it would otherwise have been V. The error thus r e s u lt e d in a sentencing guidelines range of 41-51 months when the range s h o u ld have been 37-46 months. The sentence actually imposed by the d is t r ic t court was 46 months -- the exact middle of the erroneous range, but t h e very top of the correct range. I n previous cases involving sentences "fall[ing] within both the correct a n d incorrect guideline ranges," we have addressed the third prong of plain e r r o r review in a "highly fact sensitive" way. United States v. CampoR a m ir e z , 379 F. App'x 405, 409 (5th Cir. 2010) (unpublished). Compare 3

Case: 09-40877 Document: 00511329794 Page: 4 Date Filed: 12/22/2010

No. 09-40877 U n ite d States v. Jones, 596 F.3d 273, 277-79 (5th Cir. 2009) (declining to v a c a t e a sentence), with United States v. Price, 516 F.3d 285, 289 (5th Cir. 2 0 0 8 ) (vacating and remanding). In this case, at the sentencing hearing, the d is t r ic t judge commented that he found 46 months to be a "reasonable" s e n te n c e ; however, he also twice noted that after carefully considering both s id e s ' arguments, he was imposing a sentence at the midpoint of the incorrect r a n g e on which he relied. Defense counsel's strongest argument was that the c a r e e r offender designation overstated the seriousness of Ramirez-Mata's c r im in a l history because it was predicated on the prior conviction under § 22.011(a)(2), which involved only consensual sex with a teenage girl who t h e r e a ft e r , as an adult, continued to be in a long-term relationship with R a m ir e z -M a t a . If the district court had used the correct sentencing range, d e fe n s e counsel would have been deprived of his strongest argument because t h e career offender designation would no longer have been at issue. Thus, it is likely that the district court would still have found 46 months to be a r e a s o n a b le sentence. Ramirez-Mata has not shown a reasonable probability t h a t he would have received a lower sentence. W e therefore AFFIRM the judgment of the district court.

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