United States v. Fred Ramos

376 F. App'x 457
CourtCourt of Appeals for the Fifth Circuit
DecidedApril 30, 2010
Docket09-50320
StatusUnpublished
Cited by3 cases

This text of 376 F. App'x 457 (United States v. Fred Ramos) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fred Ramos, 376 F. App'x 457 (5th Cir. 2010).

Opinion

PER CURIAM: *

Fred Andrew Ramos appeals the 300-month, within-guidelines sentence imposed after he pleaded guilty to one count of possession with intent to distribute crack cocaine, one count of possession of a firearm in furtherance of a drug trafficking crime, and two counts of possession of a firearm by a convicted felon.

In written objections and again at the sentencing hearing, Ramos argued that his two prior convictions in Texas for evading arrest in a motor vehicle did not constitute a crime of violence (“COV”) supporting the application of an enhancement of his sentence. Although Ramos challenges the district court’s treatment of his prior Texas convictions as COV within the meaning of U.S.S.G. § 4B1.2, he acknowledges that his argument is foreclosed under our case *459 law and raises the issue only to preserve it for further review. See United States v. Harrimon, 568 F.3d 531, 535 (5th Cir.2009) (holding that the Texas crime of evading arrest by use of a motor vehicle is a COV, because the crime is purposeful, violent, and aggressive). Ramos therefore concedes that under this court’s case law the district court did not err in applying the enhancement.

Ramos next argues that his sentence is procedurally unreasonable because the district court failed to explain its reasons for the within-guidelines sentence or for denying his nonfrivolous arguments for a below-guideline sentence as required by 18 U.S.C. § 3553(c). A district court’s explanation for its imposition of a particular sentence “allow[s] for meaningful appellate review ... and promoters] the perception of fair sentencing.” Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). A sentence within the guidelines range will require “little explanation,” United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005), but where a party “presents nonfrivolous reasons for imposing a different sentence ... the judge will normally go further and explain why he has rejected those arguments.” Rita v. United States, 551 U.S. 338, 357, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).

The parties dispute whether Ramos preserved this claim. If Ramos failed to preserve his claim, then review would be for plain error, in which case he would have to show that an obvious error by the district court affects his substantial rights. See Fed.R.Crim.P. 52(b); Puckett v. United States, — U.S.-,-, 129 S.Ct. 1423, 1429, 173 L.Ed.2d 266 (2009). If he made such a showing, we would have the discretion to correct the error but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.Ct. at 1429. On the other hand, if Ramos preserved his claim and the plain error standard were not applicable, then this court would need to consider whether the error was harmless or required remand. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir.2009) (discussing harmlessness with respect to errors that might have affected the district court’s selection of sentence, but not addressing the harm that might affect this court’s ability to review the substantive reasonableness of a sentence).

After the district court announced Ramos’s sentence, the following exchange occurred between Ramos’s attorney, Mr. Schwieger, and the court:

MR. SCHWIEGER: And as I’m required to do by the Fifth Circuit, Your Honor, I would object to the reasonableness of the sentence in this matter.
THE COURT: You’re not required to do that by the Fifth Circuit, but you’re welcome to anyway.
MR. SCHWIEGER: Actually, I have to preserve error. Otherwise they review it under plain error, Your Honor.
THE COURT: That is incorrect. You may be excused.
MR. SCHWIEGER: Thank you, Your Honor. I’m assuming that’s overruled? Or my objection?
THE COURT: There’s nothing to rule on. You just made a statement.
MR. SCHWIEGER: Thank you, Your Honor.

We agree with the government that Ramos’s objection failed to preserve his procedural claim of error. For an objection to be adequate, a party must raise the objection with sufficient specificity so that the district court is alerted to the issue before it. See United States v. Hernandez, 64 F.3d 179, 181 (5th Cir.1995) (per curiam). If the defendant has failed to object on specific grounds to the reason *460 ableness of his sentence, thereby denying the court the opportunity to identify and correct any errors, we review for plain error. See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir.2009).

Although Ramos’s attorney made a general objection expressing some level of disagreement with the reasonableness of the sentence, this objection was too vague to place the district court on notice of the issue he now raises. All that Ramos’s attorney stated was that he “objected] to the reasonableness of the sentence in this matter.” A district court hearing this statement would not reasonably discern from it that the defendant wanted further explanation of the sentence or its reasons for denying his nonfrivolous arguments for a below-guideline sentence. To be sure, Ramos was not required to state the issue as clearly as appellate counsel has or, for that matter, even to cite to § 3553(c) in order to preserve the issue for appeal. See 3B Charles Alan Wright, Nancy J. King, Susan R. Klein, Federal PRACTICE and Procedure, § 842 (2d ed. 2004) (“The general rule requiring counsel to make clear to the trial court what action they wish taken should not be applied in a ritualistic fashion.”); see also Hernandez, 64 F.3d at 181. But absent any statement that the district court could have reasonably interpreted as arguing for further explanation of the sentence, we cannot conclude that Ramos preserved the issue. Furthermore, the district court’s statement that “[t]here’s nothing to rule on” should have alerted Ramos that he needed to clearly and specifically articulate the reasons for his objection so that it could be preserved for appeal. Lastly, Ramos’s contentions that his efforts to properly object were circumvented by the court are unconvincing. Ramos had ample opportunity to ask the district court for further explanation during the sentencing hearing, but did not. Cf. United States v. Castillo,

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Related

United States v. Doyle
678 F.3d 429 (Sixth Circuit, 2012)
Ramos v. United States
180 L. Ed. 2d 849 (Supreme Court, 2011)

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Bluebook (online)
376 F. App'x 457, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fred-ramos-ca5-2010.