     Case: 09-30341     Document: 00511090058          Page: 1    Date Filed: 04/23/2010




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

                                                  FILED
                                                                            April 23, 2010
                                     No. 09-30341
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

EDUARDO RAMOS-MENDEZ, also known as Eddie, also known as Eduardo
Navarro Ramos,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:05-CR-20084-4


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Eduardo Ramos-Mendez appeals the sentence imposed for his conviction
of conspiracy to possess and distribute five kilograms or more of cocaine and
marijuana.      The district court sentenced Ramos-Mendez to 240 months of
imprisonment and five years of supervised release.
        Ramos-Mendez asserts that he was sentenced based on mere estimates of
the quantities of cocaine for which he was responsible and that his criminal


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-30341    Document: 00511090058 Page: 2            Date Filed: 04/23/2010
                                 No. 09-30341

history score overrepresented the seriousness of his criminal history because one
of his prior convictions was based on conduct that was part of the instant
conspiracy. Ramos-Mendez filed no objections to his presentence report (PSR),
and these contentions were not raised in the district court. Thus they are
reviewed for plain error only. See United States v. Hernandez-Martinez, 485
F.3d 270, 272-73 (5th Cir. 2007). To demonstrate plain error, Ramos-Mendez
must identify an error that is obvious and that affected his substantial rights.
Hernandez-Martinez, 485 F.3d at 273.           If he makes this showing, we may
exercise our discretion to notice the forfeited error only if “the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
      The amount of cocaine for which Ramos-Mendez was considered
responsible was based on and consistent with the information provided in the
factual basis accompanying his plea agreement. Additionally, Ramos-Mendez
provides no evidence indicating that his 1999 offense was part of the instant
conspiracy, and his bare assertion now does not demonstrate plain error. See
Hernandez-Martinez, 485 F.3d at 273; cf. United States v. Washington, 480 F.3d
309, 320 (5th Cir. 2007) (recognizing that defendant bears burden of
demonstrating that information in PSR is inaccurate or unreliable).
      Ramos-Mendez      also   contends       that   his   sentence   is   unfair   and
disproportionate compared to others in the conspiracy in light of his role as “the
lowly mule in the organization” and that his sentence illustrates the failure of
the Guidelines with respect to defendants who have only a minor role in a
conspiracy.   He contends that his sentence exceeds what was required to
accomplish the goals of sentencing.       The record refutes the assertion that
Ramos-Mendez served merely as a lowly transporter.                 The factual basis
accompanying his plea agreement and the factual findings in his PSR reflect
that he acted in concert with his brothers, who formed the top levels of the
organization, in coordinating the distribution of drugs and receipt of proceeds in
an extensive and voluminous enterprise. Ramos-Mendez also challenges the

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                                No. 09-30341

district court’s evaluation of the factors under 18 U.S.C. § 3553(a), contending
that a sentence of 10 years of imprisonment would have been adequate. The
substantive reasonableness of Ramos-Mendez’s sentence is reviewed for plain
error because he did not object on that ground in the district court. See United
States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009) (reviewing substantive
reasonableness of revocation sentence); United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Ramos-Mendez’s within-guidelines sentence is presumed
reasonable, see United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006), and
he has not shown that the district court plainly erred in its consideration of the
§ 3553(a) factors. See Peltier, 505 F.3d at 391-92.
      Lastly, Ramos-Mendez complains that the Government did not file a
motion for a reduction of his sentence under F ED. R. C RIM. P. 35 despite his
willingness to assist the Government by testifying at the trial of other
defendants.   Ramos-Mendez’s plea agreement indicated that the decision
whether to file such a motion was entirely within the Government’s discretion.
His assertion is unavailing, as he provides no basis for finding that the
Government acted improperly in not filing a Rule 35 motion. See United States
v. Grant, 493 F.3d 464, 467 (5th Cir. 2007).
      AFFIRMED.




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