United States of America v. Demetrio Cruz-Ramirez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DEMETRIO CRUZ-RAMIREZ,
Defendant - Appellant.
No. 12-10589
D.C. No. 4:12-cr-00355-RCC
MEMORANDUM*
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
FILED
JAN 24 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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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.
12-10589 2

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