United States v. Demetrio Cruz-Ramirez

FILED
JAN 24 2014
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-10589

Plaintiff - Appellee, D.C. No. 4:12-cr-00355-RCC

v.
MEMORANDUM*
DEMETRIO CRUZ-RAMIREZ,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief Judge, Presiding

Submitted January 21, 2014**

Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.

Demetrio Cruz-Ramirez appeals from the district court’s judgment and

challenges the 60-month sentence imposed following his jury-trial conviction for

three counts of bringing in illegal aliens for private financial gain, in violation of 8

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1324(a)(2)(B)(ii). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Cruz-Ramirez contends that the district court erred in calculating the

Guidelines range on Counts One and Two and failed adequately to explain the

upward variances on these counts. We review for plain error, see United States v.

Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find none. Effective

November 1, 2012, section 5G1.2(b) of the Sentencing Guidelines was amended to

clarify that, when sentencing on multiple counts of conviction, “the court shall

determine the total punishment and shall impose that total punishment on each

[count].” U.S.S.G. § 5G1.2(b) (2012). We use an amendment to the Guidelines to

interpret a Guidelines provision retroactively when it clarifies rather than alters the

law. See United States Catalan, 701 F.3d 331, 333 (9th Cir. 2012) (per curiam).

Under the amended Guideline, the district court did not err in calculating the

Guidelines range for Counts One and Two. See U.S.S.G. § 5G1.2 cmt. n.3(B)

(2012). Moreover, the concurrent 60-month sentences on Counts One and Two do

not represent upward variances, and no further explanation of the sentence was

required. See Rita v. United States, 551 U.S. 338, 356-57 (2007).

AFFIRMED.

2 12-10589