United States v. Roberto Ramirez-Ramirez

540 F. App'x 638

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 23, 2013
• Docket: 12-50162
• Status: Unpublished

Opinion

MEMORANDUM ***

Roberto Ramirez-Ramirez appeals his convictions and sentence for conspiracy to possess cocaine with intent to distribute and conspiracy to distribute at least five kilograms of cocaine (21 U.S.C. § § 846 & 841(b)(l)(A)(ii)), conspiracy to interfere with commerce by robbery (18 U.S.C. § 1951), possession of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)), and being an illegal alien in possession of a firearm (18 U.S.C. § 922(g)(5)).

1. Federal Rule of Criminal Procedure 11(c)(1), on its face, applies to plea negotiations, not a defendant’s jury trial waiver. Whereas “judicial involvement in plea negotiations inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty,” United States v. Bruce, 976 F.2d 552, 556 (9th Cir.1992), Ramirez-Ramirez contested his guilt in a bench trial. Moreover, a colloquy is required in other situations when a defendant waives a jury trial, see, e.g., United States v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir.1997), and this creates inherent tension between Rule ll(c)(l)’s proscription of judicial participation and a jury trial waiver.

2. The district court’s colloquy adequately addressed the criteria described in United States v. Cochran, 770 F.2d 850, 852 (9th Cir.1985). With respect to precautions that would have been taken in a jury trial to avoid prejudice from the alien in possession of a firearm charge, the district court did not need to “explain to the defendant the strategic ramifications of the decision” to waive a jury trial. United States v. Reyes, 603 F.2d 69, 72 (9th Cir.1979) (waiver of 12-person jury).

3. Ramirez-Ramirez did not present any evidence tending to show “a lack of intent or lack of capability to deal in the quantity of drugs charged.” United States v. Yuman-Hernandez, 712 F.3d 471, 475 (9th Cir.2013). Ramirez-Ramirez’s argument that there was no evidence that he was predisposed mis-perceives the burden of proof. Id.

4. Although generally a “district court is obligated to make express factual findings as to whether the defendant met” his or her burden to show sentencing entrapment by a preponderance of the evidence, United States v. Riewe, 165 F.3d 727, 729 (9th Cir.1999), here, Ramirez-Ramirez presented no credible evidence to satisfy his burden. Consequently, the district court’s findings were adequate.

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.