United States v. Ramos

• Decision Date: 27 March 2017
• Docket Number: No. 16-1306,16-1306
• Citation: United States v. Ramos, 852 F.3d 747 (8th Cir. 2017)
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Gilberto Ray RAMOS, Defendant–Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

852 F.3d 747

UNITED STATES of America, Plaintiff–Appellee

v.Gilberto Ray RAMOS, Defendant–Appellant

No. 16-1306

United States Court of Appeals, Eighth Circuit.

Submitted: September 19, 2016

Filed: March 27, 2017

Counsel who represented the appellant was Sammi Wilmoth of Fayetteville, AR.

Counsel who represented the appellee was David A. Harris, AUSA, of Fort Smith, AR.

Before WOLLMAN, ARNOLD, and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Gilberto Ray Ramos was convicted after trial of multiple drug offenses, as well as the offense of being a felon in possession of a firearm.He appeals those convictions, arguing that they were supported by insufficient evidence, that the district court erred in admitting an exhibit that included an Arkansas Parole Board Waiver of Revocation Hearing form he signed, and that his sentence is substantively unreasonable.We affirm in part and reverse in part.

I.Background

Law enforcement first became interested in Ramos during a wiretap investigation of another individual, Abraham Duran.One of the wiretap monitors, Gary Gregory, testified that he had monitored and translated three calls between Duran and another individual with a telephone number ending in 0679.During one of the calls, Duran asked the individual if he needed "more."During another call, Duran told the individual to call him so Duran could "take [him] the other part."Duran was eventually arrested for and convicted of distribution of methamphetamine, and, pursuant to a plea agreement, cooperated with law enforcement officers in their investigation.

Duran testified at trial that Ramos was the individual he had been speaking to in the three intercepted calls.Duran testified that the calls related to his agreement with Ramos to distribute methamphetamine.According to Duran, he supplied Ramos with methamphetamine at Ramos' residence at the Brookhaven Apartments in Springdale, Arkansas.Duran also testified about a text message that law enforcement had retrieved from his phone.According to Duran, in the text message, Ramos was offering to sell him a .40 caliber firearm.

Detective Preston Oswalt testified that he arranged for a confidential informant, Armando Gonzales, to make controlled purchases of methamphetamine from Ramos.Based on information provided by Gonzales, Oswalt located an apartment that he believed was Ramos' at the Brookhaven Apartments.According to Oswalt, Springdale water records listed Ramos as the occupant of the apartment.Gonzales made controlled purchases of methamphetamine at the apartment on three occasions.Each time, Gonzales purchased one gram of methamphetamine for $100.After the first purchase, Oswalt showed Gonzales a known photograph of Ramos, and Gonzales confirmed that Ramos had been the one to sell him the methamphetamine.Gonzales also testified at trial.According to Gonzales, he offered to work with the police in order to reduce his punishment for drug possession charges.Gonzales also identified Ramos in court as the man who sold him the methamphetamine.

Oswalt testified that on December 5, 2014, he and other police officers executed a search warrant at the apartment.Before they executed the warrant, officers saw a man and a woman approach the apartment and knock on the door.Another woman, later identified as Jasmyn Schmid, answered the door.Oswalt testified that in his understanding, Schmid was living at the apartment at the time.Schmid and the other two individuals left the residence together in a vehicle.Officers stopped the vehicle, and questioned and searched Schmid.They found a marijuana pipe, a methamphetamine pipe, a digital scale, and user amounts of marijuana and methamphetamine, and arrested her for drug possession.Then, officers searched the apartment.In the kitchen, they found a ledger, digital scale, baggies, and cash, as well as approximately two ounces of methamphetamine in Kool–Aid containers in the freezer.In one of the two bedrooms, they found a .45 caliber pistol under the mattress, next to a pink vibrator.The bedroom closet contained men's and women's clothing.The other bedroom's closet also contained men's clothing.On February 19, 2015, law enforcement located Ramos at his mother's residence and arrested him.The officers searched the residence, and found a water bill for the Brookhaven apartment in Ramos' name.

At the time he was arrested, Ramos was on parole for an Arkansas criminal conviction.Ramos' parole officer Taylor Sevier¹ testified at trial that he notified Ramos on February 23, 2015, that he was seeking to revoke Ramos' release.He provided Ramos with a form titled Notice of Parole Violation Action (Notice Form), which listed the alleged violations.

Sevier testified that he informed Ramos he had a right to a revocation hearing.Instead, on March 10, 2015, Ramos signed a form titled Arkansas Parole Board Waiver of Revocation Hearing(Waiver Form), in which he waived his right to a hearing and admitted to the alleged violations.The Waiver Form states, in part, "I admit that I have violated the following condition(s) of release as alleged[.]"Underneath, boxes labeled "#4 Laws" and "#5 Weapons" are marked.At the bottom of the form are the dated signatures of Ramos, Sevier, and a hearing judge.The Notice Form previously provided to Ramos includes more detail regarding his alleged violation of the "#4 Laws" release condition:

#4 Laws: Count 1) Over the last four months Ramos committed the offense of Possession of a Controlled Substance with Purpose Schedule II(Methamphetamine).Count 2) Over the last four months Ramos committed the offense of Simultaneous Possession of Drugs and Firearms.Count 3) Over the last four months Ramos committed the offense of Possession of Drug Paraphernalia.Count 4) Over the last four months Ramos committed the offense of Possession of a Controlled Substance Schedule VI.Count 5) Over the last four months Ramos committed the offense of Possession of a Controlled Substance Schedule II(Acetaminophen/Hydrocodone).Count 6) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II(Methamphetamine).Count 7) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II(Methamphetamine).Count 8) Over the last four months Ramos committed the offense of Delivery of a Controlled Substance Schedule II(Methamphetamine).Count 9) Over the last four months Ramos committed the offense of Theft by Receiving.Count 10) Over the last four months Ramos committed the offense of Possession of a Firearm by Certain Person.

The government offered the Waiver Form and Notice Form into evidence as a single exhibit, Exhibit 37.Ramos objected under Rule 403 of the Federal Rules of Evidence.The district court overruled the objection, and admitted the exhibit.

The jury ultimately convicted Ramos of one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)and846; three counts of distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); one count of possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1)and924(a)(2).The jury acquitted Ramos of one count of knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).The district court sentenced Ramos to 148 months for each of the drug offenses, and 120 months for the offense of being a felon in possession of a firearm, to run concurrently.Ramos timely appealed.

II.Discussion

Ramos appeals on the grounds that there was insufficient evidence to support his convictions, that the district court erred in admitting Exhibit 37, and that his sentence was substantively unreasonable.

A.Sufficiency of the Evidence

First, Ramos argues there was insufficient evidence to support his convictions.Ramos did not move for judgment of acquittal at the close of the government's case—a failure that would ordinarily necessitate plain-error review.United States v. Calhoun , 721 F.3d 596, 600(8th Cir.2013).Here, however, the district courtsua sponte considered the sufficiency of the evidence at the close of the evidence as if Ramos had moved for a judgment of acquittal, and ruled that it would deny such a motion.A basic reason for requiring litigants to preserve issues for appeal is to give the district court an opportunity to prevent or correct mistakes in the first instance.

United States v. Simms , 757 F.3d 728, 733–34(8th Cir.2014).Here, the district court had that opportunity and took it when it considered the question as if Ramos had raised it.Even if Ramos technically forfeited, or even waived, his right to move for a judgment of acquittal, he did not forfeit or waive his right to appeal from the trial court's sua sponte order holding that the evidence was sufficient to sustain a guilty verdict.At least one other circuit has, in a similar situation, reviewed the record de novo rather than for plain error.SeeUnited States v. Wolff , 370 Fed.Appx. 888, 891–92, 891 n.1(10th Cir.2010)(unpublished).Accordingly, we will "review the sufficiency of the evidence to sustain a conviction de novo, viewing the evidence in the light most favorable to the jury's verdict and reversing the verdict only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt."United States v. Ways , 832 F.3d 887, 894(8th Cir.2016).

1.Drug convictions

Initially, Ramos argues there was insufficient evidence to support his convictions for distribution of methamphetamine, possession with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine.He contends that Duran's testimony was insufficient to establish a conspiracy, that insufficient evidence connects him to the apartment where the methamphetamine was found, and that Gonzales'...