Case: 12-41289 Document: 00512406800 Page: 1 Date Filed: 10/15/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 15, 2013
No. 12-41289
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DANIEL RAY RAMIREZ,
Defendant-Appellant
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 6:04-CR-82-1
Before KING, DeMOSS, and GRAVES, Circuit Judges.
PER CURIAM:*
Daniel Ray Ramirez, federal prisoner # 76914-079, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his sentence based
on the amendments to the crack cocaine Guideline.
This court must examine the basis of its jurisdiction, sua sponte, if
necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “[A] § 3582(c)(2)
motion is not a civil postconviction action but a ‘step in a criminal case.’” United
States v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000) (citation omitted). Because
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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No. 12-41289
Ramirez’s motion to reconsider was filed after the expiration of the 14-day period
for noticing an appeal from the denial of his § 3582 motion on July 25, 2012, the
motion to reconsider did not serve to extend the time for filing the notice of
appeal. Ramirez did not file his notice of appeal until November 9, 2012,
following the October 31, 2012, denial of his motion for reconsideration. Thus,
Ramirez’s notice of appeal is effective only as to the district court’s denial of his
motion for reconsideration. The Government has filed a brief on the merits and
does not suggest that the denial of § 3582(c)(2) relief is not properly before us;
therefore, we address the merits of Ramirez’s arguments. See United States v.
Martinez, 496 F.3d 387, 388-89 (5th Cir. 2007).
Ramirez’s notice of appeal was timely as to the denial of the motion for
reconsideration, and he stated in his notice of appeal that he desired to appeal
that order. However, in his brief, Ramirez makes no argument challenging the
denial of his motion for reconsideration, and so that portion of his appeal is
considered abandoned. See United States v. Reyes, 300 F.3d 555, 558 n. 2 (5th
Cir. 2002).
Ramirez argues that the district court erred in denying his § 3582(c)(2)
motion because it failed to engage in the two-step analysis under Dillon v.
United States, 130 S. Ct. 2683, 2691 (2010), and failed to consider Freeman v.
United States, 131 S. Ct. 2685 (2011). Ramirez contends that Freeman permits
relief because he pleaded guilty under a plea agreement that projected a possible
sentencing range and that the district court overlooked this fact and
misapprehended the applicability of Freeman to his request for relief under
§ 3582.
The district court correctly determined that Ramirez was sentenced as a
career offender and so was not entitled to a sentence reduction because “[t]he
crack cocaine guideline amendments do not apply to prisoners sentenced as
career offenders.” United States v. Anderson, 591 F.3d 789, 791 (5th Cir. 2009).
Ramirez’s reliance on Freeman is without merit. In Freeman, the Supreme
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No. 12-41289
Court held that defendants who were sentenced pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreements were not categorically precluded
from receiving a sentence reduction under § 3582(c)(2). Freeman, 131 S. Ct. at
2692-95. Nothing in Freeman concerns defendants sentenced as career offenders
or alters our holding in Anderson. Ramirez’s plea agreement was made
pursuant to Federal Rule of Criminal Procedure 11(c)(1)(B) and did not contain
an agreement concerning the application of a particular guideline or sentencing
range.
Because the district court correctly determined that Ramirez was
ineligible for a reduction under § 3582(c)(2), the district court was not required
to proceed to the second step to determine whether the § 3553(a) sentencing
factors warranted a sentence reduction. See Dillon, 130 S. Ct. at 2691-92. The
district court did not err or otherwise abuse its discretion in denying Ramirez’s
§ 3582(c)(2) motion due to his career offender status. See United States v.
Doublin, 572 F.3d 235, 237-38 (5th Cir. 2009); Anderson, 591 F.3d at 791.
AFFIRMED.
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