UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-40361
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
RAYMOND ALVIN RAMOS,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(C-00-CR-320-1)
March 4, 2002
Before SMITH and DeMOSS, Circuit Judges, and DUPLANTIER, District
Judge.*
PER CURIAM:**
Defendant-Appellant, Raymond Alvin Ramos (Ramos), was
convicted under 21 U.S.C. § 841(a)(1) and (b)(1)(D) for possession
of less than 50 kilograms of marijuana with the intent to
*
District Judge for the Eastern District of Louisiana, sitting
by designation.
**
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opinion should not be published and is not precedent except under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.
distribute. Ramos also was convicted under 21 U.S.C. § 841(a)(1)
and (b)(1)(A) for possession of more than five kilograms of cocaine
with the intent to distribute. We AFFIRM Ramos' convictions.
However, we modify his sentence concerning the special conditions
set forth in the district court's written judgment but not orally
pronounced at sentencing.
BACKGROUND
On August 23, 2000, Ramos attempted to cross the Sarita
checkpoint in Kingsville, Texas. Ramos, who was driving a pick-up
truck, was accompanied by a female passenger later identified as
Rana Dababneh (Dababneh). Border Patrol Agent Marcus Harrington
asked Ramos and Dababneh about their citizenship. While Agent
Harrington was speaking with Ramos and Dababneh, Border Patrol
Agent Jaime Hicks advised Agent Harrington that an inspection of
the truck was necessary because the narcotics canine had alerted to
the truck before it had even come to a stop. During the search,
the agents located approximately 45 kilograms (99 pounds) of
marijuana and 10 kilograms (23 pounds) of cocaine in a hidden
compartment within the gas tank. Ramos claimed that, although he
knew he was transporting marijuana, he did not know he was
transporting cocaine.
On September 19, 2000, a grand jury indicted Ramos on one
count of possession with the intent to distribute less than 50
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kilograms of marijuana under 21 U.S.C. § 841(a)(1) and (b)(1)(D)
(Count 1). Ramos was also indicted on one count of possession with
the intent to distribute more than five kilograms of cocaine under
21 U.S.C. § 841(a)(1) and (b)(1)(A) (Count 2). Ramos was tried
before a jury from November 6 through November 8, 2000. Following
the trial, the jury was unable to reach a unanimous verdict on
either count.
Thereafter, the government and Ramos entered into a plea
agreement under which Ramos agreed to plead guilty to Count 1 for
possession with the intent to distribute the marijuana. In
addition, Ramos agreed to cooperate with the government. Count 1
carried a maximum term of 60 months imprisonment. In exchange for
that plea agreement, the government agreed to move to dismiss Count
2 for possession with the intent to distribute the cocaine, which
carried a mandatory minimum sentence of 120 months imprisonment.
Without first obtaining a presentence report, however, the
district judge rejected the plea agreement as being unduly lenient.
The judge stated that even if Ramos did not know he was
transporting cocaine, he could be convicted on the cocaine count if
he knew that he was carrying a controlled substance. Urging the
judge to accept the proposed plea agreement, the government argued
that although Ramos was subject to the mandatory minimum sentence
of 120 months imprisonment on Count 2, based on the cooperation
provision of the proposed plea agreement, the government would move
for a downward departure from Ramos' guideline sentence if he was
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convicted on that count. The government indicated that it intended
to request at least a 50 percent reduction in Ramos' sentence. If
granted, Ramos could be sentenced to approximately 60 months
imprisonment on Count 2, which was the same sentence he would have
received if he were allowed to plead guilty to only Count 1. The
judge, nevertheless, was not persuaded.
A second jury trial took place on January 8 and 9, 2001. On
January 9, the jury returned a verdict finding Ramos guilty of both
charges. On March 29, 2001, the district court sentenced Ramos to
a term of 144 months imprisonment and a five year term of
supervised release on Count 2 for possession with the intent to
distribute the cocaine. Additionally, the court sentenced Ramos to
a concurrent 60 month term of imprisonment and three years of
supervised release on Count 1 for possession with the intent to
distribute the marijuana.
DISCUSSION
Ramos now appeals his convictions and sentences. First, Ramos
contends that the district court abused its discretion in rejecting
the plea agreement offered by the government. Second, Ramos
complains that the district court committed plain error by failing
to state at the sentencing hearing the reasons for imposing a
particular sentence within a Sentencing Guideline range that
exceeded 24 months. Third, Ramos argues that the district court
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erred by including, in its written judgment of conviction, special
conditions of supervised release that were not orally pronounced at
sentencing.
Having reviewed the entire record of this case, and having
fully considered the parties' respective briefing on the issues in
this appeal, we affirm the district court's judgment with respect
to the first two issues raised. However, we find that the district
court erred by including, in its written judgment of conviction,
special conditions of supervised release that were not orally
pronounced at sentencing.
First, we find that the district court did not abuse its
discretion in rejecting the plea agreement offered by the
government. Ramos argues that under Apprendi v. New Jersey, 530
U.S. 466 (2000), the type of drug possessed is an element of a
section 841(a)(1) offense and, therefore, the government must prove
that he had the specific intent to possess cocaine. However, this
Court has consistently held that the specific intent requirement
under section 841(a) is knowledge that the substance possessed is
a controlled substance, not knowledge of the specific type of
controlled substance possessed. United States v. Valencia-
Gonzales, 172 F.3d 344, 345-46 (5th Cir. 1999); United States v.
Cartwright, 6 F.3d 294, 303 (5th Cir. 1993); United States v.
Fragoso, 978 F.2d 896, 902 (5th Cir. 1992). Apprendi does not
require this Court to change its reading of the statute.
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Second, the district court did not commit plain error by
failing to state at the sentencing hearing the reason for imposing
a particular sentence within a Sentencing Guideline range that
exceeded 24 months. Title 18 U.S.C. § 3553(c)(1) provides: “The
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence, and, if the
sentence–is of the kind, and within the range, described in
subsection (a)(4) and that range exceeds 24 months, the reason for
imposing a sentence at a particular point within the range.”
Ramos' sentencing range was 135 to 168 months. The district court
orally imposed a 144 month term of imprisonment. The
“Imprisonment” section of the written judgment imposes the same 144
month term of imprisonment. However, the “Statement of Reasons”
section of the written judgment states that the term of
imprisonment is 135 months.
Ramos asserts that the district court failed to comply with
section 3552(c)(1), and that the written explanation contained in
the “Statement of Reasons” section of the written judgment does not
satisfy the statute's requirements. However, based on the
transcripts of the court's oral colloquy during Ramos' sentencing
hearing, it is clear that the district court properly sentenced
Ramos to 144 months of imprisonment and stated orally the reasons
for imposing the particular sentence. The only logical conclusion
for the discrepancy that Ramos refers to, is that the numeral “135"
in the “Statement of Reasons” section of the written judgment is
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merely a clerical error. We find that such a clerical error does
not create doubts as to the period of incarceration the district
court intended to impose, and that the error did not affect his
substantial rights.
However, we do find that the district court erred by
including, in its written judgment of conviction, special
conditions of supervised release that were not orally pronounced at
sentencing. At the sentencing hearing, the district court imposed
concurrent sentences of supervised release on Ramos. In so doing,
the court imposed the following special conditions: “In addition
to the fine and payment, [Ramos] shall participate in a treatment
for drug and alcohol abuse and addiction.” However, the written
judgment of conviction adds to this: “The defendant shall further
submit to drug detection techniques in addition to those performed
by the treatment agency, as directed by the probation officer. The
defendant will incur costs associated with such monitoring, based
on ability to pay as determined by the probation officer.”
In United States v. Martinez, 250 F.3d 941, 942 (5th Cir.
2001), this Court concluded that “when there is a conflict between
a written sentence and an oral pronouncement, the oral
pronouncement controls. If, however, there is merely an ambiguity
between the two sentences, the entire record must be examined to
determine the district court's true intent.” In the case at hand,
the oral sentence imposed a special condition of supervised release
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requiring Ramos to participate “in a treatment for drug and alcohol
abuse and addiction.” The special condition imposed in the written
judgment is considerably more far-reaching. It imposes not only
“treatment for drug and alcohol abuse and addiction,” but also a
separate requirement that the defendant submit to drug testing in
addition to that performed by the treatment agency in the course of
the drug treatment program. Thus, there is a conflict between the
oral and written pronouncements of Ramos' sentence.
Where there is a conflict between the oral and written
sentences, the oral sentence prevails. Id. Therefore, we excise
the portion of the written sentence that states: “The defendant
shall submit to drug detection techniques in addition to those
performed by the treatment agency, as directed by the probation
officer. The defendant will incur costs associated with such
monitoring, based on ability to pay as determined by the probation
officer.”
CONCLUSION
We hold that the district court did not abuse its discretion
in rejecting the plea agreement offered by the government.
Furthermore, the district court did not commit plain error by
failing to state at the sentencing hearing the reason for imposing
a particular sentence within a Sentencing Guideline range that
exceeded 24 months. However, we hold that the district court erred
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by including special conditions of supervised release that were not
orally pronounced at sentencing. We therefore modify Ramos'
sentence to reflect this fact by excising those special conditions.
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