FILED
NOT FOR PUBLICATION
OCT 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50330
Plaintiff-Appellee, D.C. No. 2:14-cr-00689-PA-1
v.
MEMORANDUM*
JESUS JORGE FLORES-RAMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted October 4, 2017**
Pasadena, California
Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.
Defendant Jesus Jorge Flores-Ramirez appeals his convictions of conspiracy
to distribute cocaine under 21 U.S.C. § 846, and distribution of cocaine under 21
U.S.C. § 841(a)(1), (b)(1)(A)(ii), and his sentence. We affirm the conviction but
remand for resentencing.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
1. Even assuming that the district court erred by admitting Defendant’s
confession, any error was harmless because the evidence of guilt was
overwhelming. United States v. Butler, 249 F.3d 1094, 1101 (9th Cir. 2001).
Among other things, Special Agent Baker identified Defendant at trial as the
individual who delivered cocaine to him. Baker also testified that he and
Defendant identified one another through code names and the serial number on a
dollar bill. Baker and the other government agents communicated, through an
encrypted Blackberry, with an intermediary in arranging Defendant’s delivery.
Photographs and an audio recording captured the transaction.
2. The district court did not err in denying Defendant safety-valve relief
under Federal Rule of Criminal Procedure 32 on the ground that Defendant had not
truthfully provided to the government all the information that he had concerning the
drug delivery. See United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000)
(stating that compliance with Rule 32 is reviewed de novo); United States v. Real-
Hernandez, 90 F.3d 356, 362 (9th Cir. 1996) (concluding that the defendant must
provide truthfully all information he had concerning his offense to qualify for
safety-valve relief). The court previously found that Defendant had lied about not
knowing at the time of delivery that the boxes contained drugs and about his use of
code words and countersurveillance driving techniques, among other things. The
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court found it implausible that, if Defendant were telling the truth, he could have
been entrusted with so large a quantity of drugs. The court referenced those
findings in denying safety-valve relief.
3. The district court did not clearly err in denying Defendant a downward
adjustment for acceptance of responsibility on the ground that Defendant denied
significant aspects of his criminal conduct. United States v. Fleming, 215 F.3d 930,
939 (9th Cir. 2000). The court recognized that it could grant an adjustment even
though Defendant had gone to trial, but it denied the adjustment because it found,
among other things, that Defendant lied about the timing of his knowledge that he
was delivering cocaine.
4. In light of United States v. Quintero-Leyva, 823 F.3d 519, 524 (9th Cir.
2016), the parties agree that remand to the district court is appropriate so that it can
consider the newly enunciated factors for a minor role reduction under Amendment
794 to U.S.S.G § 3B1.2. Though the Amendment was not in effect at the time of
Defendant’s sentencing, it applies retroactively. Id. This issue need not be
remanded to a different district court judge because the circumstances here are not
unusual. United States v. Waknine, 543 F.3d 546, 559–60 (9th Cir. 2008).
Conviction AFFIRMED; sentence VACATED and REMANDED for
resentencing.
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