Case: 09-30341 Document: 00511090058 Page: 1 Date Filed: 04/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 23, 2010
No. 09-30341
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
EDUARDO RAMOS-MENDEZ, also known as Eddie, also known as Eduardo
Navarro Ramos,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:05-CR-20084-4
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Eduardo Ramos-Mendez appeals the sentence imposed for his conviction
of conspiracy to possess and distribute five kilograms or more of cocaine and
marijuana. The district court sentenced Ramos-Mendez to 240 months of
imprisonment and five years of supervised release.
Ramos-Mendez asserts that he was sentenced based on mere estimates of
the quantities of cocaine for which he was responsible and that his criminal
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30341
history score overrepresented the seriousness of his criminal history because one
of his prior convictions was based on conduct that was part of the instant
conspiracy. Ramos-Mendez filed no objections to his presentence report (PSR),
and these contentions were not raised in the district court. Thus they are
reviewed for plain error only. See United States v. Hernandez-Martinez, 485
F.3d 270, 272-73 (5th Cir. 2007). To demonstrate plain error, Ramos-Mendez
must identify an error that is obvious and that affected his substantial rights.
Hernandez-Martinez, 485 F.3d at 273. If he makes this showing, we may
exercise our discretion to notice the forfeited error only if “the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
The amount of cocaine for which Ramos-Mendez was considered
responsible was based on and consistent with the information provided in the
factual basis accompanying his plea agreement. Additionally, Ramos-Mendez
provides no evidence indicating that his 1999 offense was part of the instant
conspiracy, and his bare assertion now does not demonstrate plain error. See
Hernandez-Martinez, 485 F.3d at 273; cf. United States v. Washington, 480 F.3d
309, 320 (5th Cir. 2007) (recognizing that defendant bears burden of
demonstrating that information in PSR is inaccurate or unreliable).
Ramos-Mendez also contends that his sentence is unfair and
disproportionate compared to others in the conspiracy in light of his role as “the
lowly mule in the organization” and that his sentence illustrates the failure of
the Guidelines with respect to defendants who have only a minor role in a
conspiracy. He contends that his sentence exceeds what was required to
accomplish the goals of sentencing. The record refutes the assertion that
Ramos-Mendez served merely as a lowly transporter. The factual basis
accompanying his plea agreement and the factual findings in his PSR reflect
that he acted in concert with his brothers, who formed the top levels of the
organization, in coordinating the distribution of drugs and receipt of proceeds in
an extensive and voluminous enterprise. Ramos-Mendez also challenges the
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No. 09-30341
district court’s evaluation of the factors under 18 U.S.C. § 3553(a), contending
that a sentence of 10 years of imprisonment would have been adequate. The
substantive reasonableness of Ramos-Mendez’s sentence is reviewed for plain
error because he did not object on that ground in the district court. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (reviewing substantive
reasonableness of revocation sentence); United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Ramos-Mendez’s within-guidelines sentence is presumed
reasonable, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and
he has not shown that the district court plainly erred in its consideration of the
§ 3553(a) factors. See Peltier, 505 F.3d at 391-92.
Lastly, Ramos-Mendez complains that the Government did not file a
motion for a reduction of his sentence under F ED. R. C RIM. P. 35 despite his
willingness to assist the Government by testifying at the trial of other
defendants. Ramos-Mendez’s plea agreement indicated that the decision
whether to file such a motion was entirely within the Government’s discretion.
His assertion is unavailing, as he provides no basis for finding that the
Government acted improperly in not filing a Rule 35 motion. See United States
v. Grant, 493 F.3d 464, 467 (5th Cir. 2007).
AFFIRMED.
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