United States v. Jose Ramirez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-40989
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JOSE HERIBERTO RAMIREZ,

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-903-1

Before BARKSDALE, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:
*

Jose Heriberto Ramirez, federal prisoner # 27159-179 and proceeding pro
se, challenges the district court’s order denying his motion seeking a reduction
of his sentence, based on United States Sentencing Guidelines Amendment 782
(lowering drug-related base offense levels) and pursuant to 18 U.S.C.
§ 3582(c)(2). Ramirez contends the court failed to obtain and consider the
archived transcript of his sentencing hearing before ruling on his motion.

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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
FILED
March 11, 2020

Lyle W. Cayce
Clerk
Case: 18-40989 Document: 00515340484 Page: 1 Date Filed: 03/11/2020

No. 18-40989
2
Without the transcript, he asserts, the court was unable to apply the 18 U.S.C.
§ 3553(a) sentencing factors. He claims: he should have been resentenced at
the low end of the amended Guidelines sentencing range; and such a sentence
would have been comparable to the original sentence and, therefore, sufficient
to satisfy the § 3553(a) sentencing factors.
The court’s “decision whether to reduce a sentence pursuant to § 3582(c)”
is reviewed for abuse of discretion. United States v. Henderson, 636 F.3d 713,
717 (5th Cir. 2011) (internal quotation marks and citation omitted). A decision
based on a legal error or a “clearly erroneous assessment of the evidence” is an
abuse of discretion. Id. (citation omitted). The court’s interpretation of the
Guidelines is reviewed de novo; its factual findings, for clear error. Id. (citation
omitted).
In ruling on a § 3582(c)(2) motion, the court must determine, pursuant
to Guideline § 1B1.10, “whether the prisoner is eligible for a sentence
modification and the extent of the reduction authorized”. Id. (citation omitted).
If reduction is authorized, the court must consider any applicable statutory
sentencing factors, enumerated in § 3553(a), “and determine whether, in its
discretion”, the authorized reduction “is warranted in whole or in part under
the particular circumstances of the case”. Id. (citation omitted).
A district court has no obligation to grant a sentence reduction and is not
required to explain its application of the statutory sentencing factors in ruling
on a § 3582(c)(2) motion. Id. at 717–18. “A court satisfies its obligation to
review the § 3553(a) factors if it can be determined from the record that it gave
due consideration to the motion as a whole, and implicitly to the factors set
forth in § 3553(a).” Id. at 718 (internal quotation marks and citation omitted).
The district judge who originally sentenced Ramirez decided the instant
motion for a sentence reduction. The electronic record available to the court
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No. 18-40989
3
from that sentencing included: Ramirez’ objections to the presentence
investigation report (PSR); his motion for a downward departure; the
Government’s response to his PSR objections and downward-departure motion;
the judgment, including a 26-page attached memorandum opinion denying his
motion for new trial; and our court’s opinion describing the evidence, and
affirming his conviction and sentence, 145 F. App’x 915 (5th Cir. 2005). Even
assuming arguendo the court did not consider the transcript to which Ramirez
refers, it had access to ample record documents supporting its conclusion in its
order denying the motion that “the sentence was appropriate under the
dictates of . . . § 3553(a)”.
AFFIRMED.
Case: 18-40989 Document: 00515340484 Page: 3 Date Filed: 03/11/2020