United States v. Miguel Ramirez Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 5, 2019
• Docket: 18-50175
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 5 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50175

Plaintiff-Appellee, D.C. No. 3:18-cr-01796-LAB

v. MEMORANDUM* MIGUEL RAMIREZ GONZALEZ, AKA Hector Lopez, AKA Hector Lopez-Cosada,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted August 16, 2019 Pasadena, California

Before: CALLAHAN and CHRISTEN, Circuit Judges, and CHEN,** District Judge.

Miguel Ramirez Gonzalez appeals his conviction and sentence for being a

removed alien found in the United States, in violation of 8 U.S.C. § 1326, and

improper entry by an alien, in violation of 8 U.S.C. § 1325. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward M. Chen, United States District Judge for the Northern District of California, sitting by designation. under 28 U.S.C. § 1291. We affirm.

Ramirez first contends that the district court erred by orally instructing the

jury that the official restraint doctrine required government agents to continuously

observe Ramirez, with no breaks occurring in that observation. He argues this is

inconsistent with our case law recognizing that minor gaps in observation,

amounting to mere seconds, do not render an alien free from official restraint. See,

e.g., United States v. Vasquez-Hernandez, 849 F.3d 1219, 1228 (9th Cir. 2017).

We review de novo whether a jury instruction misstates elements of a crime.

See United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). Assuming without

deciding that the district court’s oral instruction was erroneous, we conclude that

any error was harmless beyond a reasonable doubt. See United States v. Castillo-

Mendez, 868 F.3d 830, 839 (9th Cir. 2017). The district court’s written

instructions provided to the jury properly stated the official restraint doctrine

element. See United States v. Walter-Eze, 869 F.3d 891, 911-12 (9th Cir. 2017).

In response to a question from the jury during deliberation, the judge referred the

jury to the same written instruction. Moreover, the jury was not presented with the

issue of whether there was a minor gap (as opposed to no break) in the agent’s

observation of Ramirez. At trial, the government argued that the thermal scope

operator had lost sight of Ramirez and that Agent Stallings had located Ramirez on

his own. By contrast, Ramirez argued that the scope operator never “took [his]

2 gaze” off Ramirez. In his closing, Ramirez did not argue there was only a minor

gap in the agent’s observation of him. Consequently, neither the evidence at trial

nor the parties’ theories of the case raised to the jury the possibility that there had

been only “minor gaps” in the government’s surveillance of Ramirez.

Ramirez next argues that the written judgment conflicts with the oral

pronouncement of sentence. We disagree. Contrary to Ramirez’s contention, the

record reveals the oral pronouncement of sentence to be ambiguous on whether the

district court intended to impose a one-year term of supervised release on

Ramirez’s § 1325 conviction. “[T]he written sentence will control where there are

ambiguities in the oral pronouncement of the sentence, and the writing resolves the

ambiguity.” United States v. Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994),

abrogated on other grounds by United States v. Jackson, 167 F.3d 1280 (9th Cir.

1999).

AFFIRMED.