United States of America v. ARTEMIO RAMIREZ-ARROYO, AKA Temo

* 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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARTEMIO RAMIREZ-ARROYO, AKA
Temo,
Defendant - Appellant.
No. 11-30272
D.C. No. 3:08-cr-00228-MO-4
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 10, 2012 **
Portland, Oregon
Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.
Defendant Artemio Ramirez-Arroyo was indicted for conspiracy to
distribute and possess with intent to distribute methamphetamine, cocaine, and
FILED
OCT 19 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and
846. After accepting his plea of guilty, the district court adjudged him guilty and
sentenced him to a 240-month sentence with a five-year term of supervised release.
Defendant appeals both his conviction and sentence. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Defendant argues that his conviction and sentence should be reversed
because the district court violated Rule 11 of the Federal Rules of Criminal
Procedure when it failed to inform him during the plea colloquy of the nature of
the charged offense and the maximum and minimum mandatory penalties that
Defendant faced. We disagree.
Even if the district court violated Rule 11 and even if these violations
affected Defendant’s substantial rights and thus constitute plain error, Defendant
has not shown that they affected the fairness, integrity, and public reputation of the
judicial proceedings. See United States v. Olano, 507 U.S. 725, 735-37 (1993). At
his arraignment, the magistrate judge informed him of the maximum and minimum
mandatory penalties. Defendant later affirmed that he had understood the
magistrate judge’s explanation. We presume that Defendant recalled that
information at the plea colloquy. See United States v. Vonn, 294 F.3d 1093, 1094
(9th Cir. 2002). The plea agreement explained the nature of the charge and the

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maximum and minimum mandatory penalties. During the plea colloquy,
Defendant declared that he had gone over the plea agreement with his attorney, the
agreement was translated for him, and he understood the terms. The court
specifically called Defendant’s attention to the paragraph of the plea agreement
that contained the range of sentence and ascertained that Defendant understood it.
On similar facts, we have concluded that the district court’s Rule 11 error did not
seriously affect the fairness, integrity, and public reputation of the judicial
proceedings. See United States v. Siu Kuen Ma, 290 F.3d 1002, 1005 (9th Cir.
2002).
Defendant argues, in the alternative, that the case should be remanded for
resentencing because the district court did not comply with Rule 32(i)(1) of the
Federal Rules of Criminal Procedure when it failed to ensure at the sentencing
hearing that Defendant read and reviewed the presentence report with his counsel.
He claims that he was prejudiced because, had the district court complied with
Rule 32, he would have prepared additional evidence showing that he was not
responsible for the narcotics found in co-defendant Oscar Francisco Macias-
Ovalle’s home. We again disagree.
Although the district court violated Rule 32, the violation was harmless.
Defendant agreed in his plea agreement that his conduct involved “at least 1,500

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grams of actual methamphetamine.” Based on that quantity of drugs alone (i.e.,
without taking the narcotics found in Macias-Ovalle’s home into account), the
applicable United States Sentencing Guidelines would have prescribed a base
offense level of 38—the same base offense level recommended in the presentence
report and adopted by the district court. See U.S.S.G. § 2D1.1(a)(5), (c)(1) (2010).
Additionally, defense counsel filed objections to the presentence report, objections
that were discussed in open court in Defendant's presence. Defendant did not
convey that he was unfamiliar with the presentence report at the Rule 11 colloquy.
Therefore, although the district court erred by failing to ask Defendant if he had
read and reviewed the presentence report with his counsel, that error was harmless.
AFFIRMED.

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