United States v. Ramirez-Meneses

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 23, 2001
• Docket: 00-20616
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20616 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FREDY ALBERTO RAMIREZ-MENESES,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CR-105-1 -------------------- August 22, 2001

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM:*

Fredy Alberto Ramirez-Meneses appeals his sentence following

his guilty-plea conviction for aiding and abetting the

importation of heroin and aiding and abetting the possession of

heroin with intent to distribute, in violation of 21 U.S.C.

§§ 952(a) and 841(a)(1) and 18 U.S.C. § 2. Ramirez argues that

the district court erred in denying him a two-level reduction in

his sentence pursuant to U.S.S.G. § 2D1.1(b)(6).

Section 2D1.1(b)(6) of the Sentencing Guidelines provides:

“If the defendant meets the criteria set forth in subdivisions

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-20616 -2-

(1)-(5) of § 5C1.2 (Limitation on Applicability of Statutory

Minimum Sentences in Certain Cases) and the offense level

determined above is level 26 or greater, decrease by 2 levels.”

Because Ramirez was the party seeking an adjustment in the

sentence, he had the burden of proving the facts to support the

adjustment. United States v. Flanagan, 80 F.3d 143, 146 (5th

Cir. 1996).

Ramirez failed to meet his burden of proving his entitlement

to an adjustment under U.S.S.G. § 2D1.1(b)(6). By recanting his

admission that he previously smuggled heroin into the United

States using the same method, Ramirez called into question his

truthfulness. See U.S.S.G. § 5C1.2(5); United States v. Edwards,

65 F.3d 430, 433 (5th Cir. 1995). The Presentence Report (PSR)

and the Government’s response to Ramirez’s objections to the PSR

further supported denial of the adjustment. The district court’s

decision that Ramirez did not qualify for a two-level reduction

under U.S.S.G. § 2D1.1(b)(6) was not clearly erroneous, as it was

plausible in the light of the record read as a whole. See United

States v. Torres, 114 F.3d 520, 527 (5th Cir. 1997). Although

the district court did not articulate specific reasons for

denying the adjustment, the district court adopted the factual

findings and guideline applications contained in the PSR, except

for the drug-quantity determination, as stated in its judgment.

This was sufficient for Fed. R. Crim. P. 32 purposes. United

States v. Mora, 994 F.2d 1129, 1141 (5th Cir. 1993).

Accordingly, the district court’s judgment is

AFFIRMED.