Case: 14-50405 Document: 00512992764 Page: 1 Date Filed: 04/03/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-50405
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 3, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
RICHARD RAMOS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 6:10-CR-297
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Richard Ramos appeals the 360-month within guidelines sentence
imposed after remand for resentencing. Ramos argues that the district court
violated the mandate rule by resentencing him based on his career offender
status, rather than on the new finding of the amount of drugs attributable to
him required by this court’s decision.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 14-50405 Document: 00512992764 Page: 2 Date Filed: 04/03/2015
No. 14-50405
We review de novo the district court’s application of a remand order.
United States v. Teel, 691 F.3d 578, 583 (5th Cir. 2012). “Under the mandate
rule, a district court on remand must implement both the letter and the spirit
of the appellate court’s mandate and may not disregard the explicit directives
of that court.” Id. (quotation marks, modification, and citation omitted). “[A]ll
other issues not arising out of this court’s ruling and not raised before the
appeals court, which could have been brought in the original appeal, are not
proper for reconsideration by the district court below.” Id. (quotation marks
and citation omitted).
Although Ramos objected to the application of the career offender
guideline at his original sentencing, he did not raise that issue in his original
appeal. Accordingly, he waived that issue for appeal and for purposes of
remand. See id.; see also United States v. Griffith, 522 F.3d 607, 610 (5th Cir.
2008). Ramos has cited no authority supporting the proposition that the
Government waived for purposes of remand the application of the career
offender guideline by not arguing on original appeal that the erroneous
application of a base offense level under U.S.S.G. § 2D1.1 would be harmless
because the guidelines range would be the same under the career offender
guideline. Moreover, “[t]hat the sentence would remain within the adjusted
Guidelines range is insufficient to indicate harmlessness.” United States v.
Valdez, 726 F.3d 684, 697 (5th Cir. 2013).
We ordered the district court on remand to find the appropriate amount
of drugs attributable to Ramos and to resentence Ramos consistent with and
pursuant to our opinion. United States v. Ramos, 545 F. App’x 301, 302, 309
(5th Cir. 2013). The district court implemented the letter and spirit of this
court’s mandate. See Teel, 691 F.3d at 583.
AFFIRMED.
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