Steven McCoy v. USA

1The HONORABLE ANDREW W. BOGUE, United States District Judge for
the District of South Dakota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1186
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * District of South Dakota.
*
Omar Martin Ramirez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: August 2, 2001
Filed: August 8, 2001
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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
Omar Martin Ramirez was found guilty by a jury of being an illegal alien and
convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and
(5)(A); he was acquitted of possessing a short shotgun. The district court1 sentenced
him to concurrent 52-month prison terms and 3-year supervised release terms. On
appeal, Ramirez argues the district court improperly calculated his base offense level
based on possession of a short shotgun, see U.S.S.G. § 2K2.1(a)(3), when that fact was

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not charged as an element in the counts of conviction or proved beyond a reasonable
doubt, and the jury found him not guilty of possessing such a gun.
We conclude the district court did not err in sentencing Ramirez. The court had
authority to impose any sentence not exceeding 120 months imprisonment. See 18
U.S.C. § 924(a)(2) (10-year maximum prison term for violating 18 U.S.C. § 922(g));
United States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir.) (judge-found fact may
permissibly alter defendant’s sentence within statutory range for offense simpliciter),
cert. denied, 121 S. Ct. 600 (2000). Further, the court was free to consider conduct
underlying the count on which Ramirez was acquitted. See U.S.S.G. § 1B1.3(a)(1)(A)
(base offense level determined on basis of all acts and omissions committed by
defendant during commission of offense of conviction).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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