United States v. Ramirez

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 27, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41028
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAVIER RAMIREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-01-CR-539-1
--------------------
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Javier Ramirez was convicted for conspiracy and possession
with intent to distribute in excess of 100 kilograms of marijuana.
The district court made a two-level upward departure and sentenced
Ramirez to 121 months of imprisonment. Ramirez has moved to
supplement the record with additional evidence indicating he was a
minor player in the drug conspiracy. But "[a]n appellate court may
not consider new evidence furnished for the first time on appeal.
. . . " Theriot v. Parish of Jefferson, 185 F.3d 477, 491 n.26

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No. 02-41028
-2-
(5th Cir. 1999). Therefore, Ramirez’s motion to supplement the
record is DENIED.
On appeal, Ramirez first argues that the district court erred
in denying his request to remove a member of the venire for cause.
Because the prospective juror was not seated on the jury, Ramirez
has not shown that any reversible error arose from the district
court’s decision not to strike this juror for cause. See United
States v. Martinez-Salazar, 528 U.S. 304, 306-07 (2000).
Ramirez also argues that the district court’s addition of two
levels to his sentencing score under § 3B1.1(c) was in error, as he
disputes the district court’s factual finding that he supervised
Charles Elizondo. Ramirez has not shown this finding was in clear
error, however, and therefore we will not vacate his sentence.
AFFIRMED; MOTION DENIED.

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