United States v. Rodriguez-Ramirez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2018
• Docket: 17-50307
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 14 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50307

Plaintiff-Appellee, D.C. No. 2:99-cr-01274-PA-19 v.

HECTOR RODRIGUEZ-RAMIREZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Ronald S.W. Lew, District Judge, Presiding

Argued and Submitted December 3, 2018 Pasadena, California

Before: TASHIMA and IKUTA, Circuit Judges, and KENNELLY,** District Judge.

Hector Rodriguez-Ramirez appeals the district court’s denial of his motion

for a sentence reduction under 18 U.S.C. § 3582(c)(2). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. The district court did not err in calculating Rodriguez-Ramirez’s amended

guidelines range. Consistent with § 1B1.10(b)(1) of the U.S. Sentencing

Guidelines, the court correctly substituted the new base offense level of 32 (which

was applicable to Rodriguez-Ramirez’s offense under the amended § 2D1.1(c) of

the guidelines) in place of the prior base offense level of 38, and then applied the

grouping rules under §§ 3D1.3 and 3D1.4 to arrive at a combined adjusted offense

level of 34. See United States v. Waters, 648 F.3d 1114, 1117–18 (9th Cir. 2011);

see also United States v. Leniear, 574 F.3d 668, 673 (9th Cir. 2009). The court

then correctly applied the three level adjustment for acceptance of responsibility to

arrive at a total offense level of 31, resulting in a guidelines range of 151 to 188

months, given Rodriguez-Ramirez’s criminal history category.

The district court did not abuse its discretion in weighing the factors listed in

18 U.S.C. § 3553(a) to conclude that a sentencing reduction was not warranted.

See United States v. Mercado-Moreno, 869 F.3d 942, 949 (9th Cir. 2017). It

adequately addressed Rodriguez-Ramirez’s nonfrivolous arguments for a reduced

sentence under 18 U.S.C. § 3553(a)(1). The court explained its reasons for

determining that—contrary to Rodriguez-Ramirez’s contentions—“the nature and

circumstances of the offense and the history and characteristics of the defendant,”

18 U.S.C. § 3553(a)(1), did not weigh in favor of a lower sentence. Among other

2 things, the court noted that Rodriguez-Ramirez participated in a violent criminal

enterprise, engaged in acts of violence, was part of a conspiracy to murder a fellow

gang member, and had a prior felony conviction for manslaughter. Nor did the

district court abuse its discretion in rejecting Rodriguez-Ramirez’s argument that

denying him a sentence reduction would create unwarranted sentencing disparities

with his codefendants, because they were not similarly situated to Rodriguez-

Ramirez. Finally, the district court’s assessment that the sentence of 235 months

was “not a substantial departure” from the amended guidelines range of 151 to 188

months was not a finding of fact, let alone a clearly erroneous finding of fact.

AFFIRMED.