     Case: 19-50428      Document: 00515462259         Page: 1    Date Filed: 06/23/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-50428                            June 23, 2020
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN CARLOS ANDRES-RAMIREZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:18-CR-158-2


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       In this direct criminal appeal, Juan Carlos Andres-Ramirez challenges
his convictions for conspiracy to transport illegal aliens and transportation of
an illegal alien for the purpose of commercial advantage and private financial
gain. He argues that his convictions must be vacated because the government’s
conduct was so “outrageous” as to constitute a violation of his rights to due
process. In short, he asserts that during his post-arrest interview, a Homeland


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-50428    Document: 00515462259     Page: 2   Date Filed: 06/23/2020


                                 No. 19-50428

Security Investigations special agent induced him to lie about being a foot
guide both on the date of his arrest and on four previous occasions. We review
this issue for plain error because Andres-Ramirez failed to raise it in the
district court. See United States v. Sandlin, 589 F.3d 749, 758 (5th Cir. 2009).
      “The due process clause protects defendants against outrageous conduct
by law enforcement agents.” United States v. Arteaga, 807 F.2d 424, 426 (5th
Cir. 1986). “However, “[g]overnment misconduct does not mandate dismissal
of an indictment unless it is so outrageous that it violates the principle of
fundamental fairness under the due process clause of the Fifth Amendment.”
Sandlin, 589 F.3d at 758-59 (internal quotation marks and citation omitted).
Consequently, “the outrageous-conduct defense requires not only government
overinvolvement in the charged crime but a passive role by the defendant as
well. A defendant who actively participates in the crime may not avail himself
of the defense.” Arteaga, 807 F.2d at 427; see United States v. Posada Carriles,
541 F.3d 344, 361 (5th Cir. 2008).
      Andres-Ramirez fails to establish either prong associated with the
outrageous-conduct defense. First, he has not shown that the government’s
conduct ran afoul of the Fifth Amendment. Cf. Sandlin, 589 F.3d at 759
(collecting cases where this court has declined to find outrageous conduct). The
interview in question took place after a local deputy stopped a pickup truck for
a traffic violation and three of the truck’s four occupants presented foreign
identification. Suspecting illegal activity, the deputy requested assistance
from Border Patrol, who confirmed that the three men were unlawfully present
and thereafter initiated interviews of the truck’s occupants. Andres-Ramirez
fails to point to any persuasive evidence in the record showing that federal
agents actually coached him or any of the truck’s other occupants into involving
him in the conspiracy or identifying him as the guide.



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       Case: 19-50428   Document: 00515462259      Page: 3   Date Filed: 06/23/2020


                                   No. 19-50428

        Concerning the requirement that the defendant play a passive role, the
evidence demonstrates that before federal agents were ever involved in the
case, Andres-Ramirez had agreed to guide a group from Mexico into the United
States in exchange for $500 per person, led four persons across the border, and
coordinated with the driver for pick up. Because Andres-Ramirez was an
active participant in the conduct for which he was prosecuted, he is not entitled
to assert the outrageous-conduct defense. See Posada Carriles, 541 F.3d at
361.
        Accordingly, the district court did not commit plain error in failing to sua
sponte dismiss the indictment for outrageous government conduct.                See
Sandlin, 589 F.3d at 758-59. The judgment of the district court is AFFIRMED.




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