USA v. Joseph Ramirez

Filing

UNPUBLISHED OPINION FILED. [16-11715 Affirmed ] Judge: CES , Judge: JLD , Judge: CH Mandate issue date is 11/27/2017 for Appellant Joseph Ramirez [16-11715]

Case: 16-11715

Document: 00514223277

Page: 1

Date Filed: 11/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11715
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
November 3, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSEPH RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-140-2

Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
Joseph Ramirez appeals his 180-month, within-guidelines sentence for
conspiracy to possess with intent to distribute cocaine, alleging that the district
court erred by applying a two-level enhancement based on his possession of a
firearm during a drug trafficking offense. See U.S.S.G. § 2D1.1(b)(1). Ramirez
contends that the statement of Cedric Peoples, who told police that he had “in
the past” observed a firearm in the converted garage in which Ramirez stored

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-11715

Document: 00514223277

Page: 2

Date Filed: 11/03/2017

No. 16-11715
narcotics for sale, was insufficient to support the enhancement. This is so, he
asserts, because Peoples is not reliable and, further, because Peoples did not
specify that he had observed the firearm in Ramirez’s garage during the period
of the charged conspiracy. See § 2D1.1(b)(1).
The district court’s determination that the § 2D1.1(b)(1) enhancement
applies is a factual finding that this court reviews for clear error. United States
v. Romans, 823 F.3d 299, 317 (5th Cir. 2016). “A factual finding is not clearly
erroneous if it is plausible, considering the record as a whole.” Id. (internal
quotation marks and citation omitted).
Ramirez fails to show that the district court clearly erred in relying on
Peoples’s statement in the presentence report (PSR).

See id.

Peoples’s

assertion was corroborated by the police search of Ramirez’s garage, which
uncovered a large quantity of packaged narcotics in close proximity to a loaded
pistol magazine. Cf. United States v. Gaytan, 74 F.3d 545, 558 (5th Cir. 1996).
Ramirez’s bare contention that Peoples is not reliable does not demonstrate
that the information in the PSR is “materially untrue, inaccurate or
unreliable.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012).
Further, the discovery of the loaded magazine and the packaged
narcotics in Ramirez’s garage, coupled with Peoples’s statement and other
evidence of Ramirez’s drug activity, suffices to show a temporal and spatial
relationship between Ramirez, the drug trafficking activity, and the firearm.
See United States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010); United
States v. Marquez, 685 F.3d 501, 505, 507-08 (5th Cir. 2102). Finally, Ramirez
does not argue that it is clearly improbable that the loaded magazine found in
his garage was connected to the offense. See Zapata-Lara, 615 F.3d at 391 n.5;
United States v. Charles, 469 F.3d 402, 408 (5th Cir. 2006).
AFFIRMED.

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