                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 23 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50162

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00701-RT-1

  v.
                                                 MEMORANDUM*
ROBERTO JAIME RAMIREZ-
RAMIREZ,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Central District of California
                 Robert J. Timlin, Senior District Judge, Presiding

                           Submitted August 27, 2013**
                              Pasadena, California

Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.***




        *
             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).
        ***
             The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
      Roberto Ramirez-Ramirez appeals his convictions and sentence for

conspiracy to possess cocaine with intent to distribute and conspiracy to distribute

at least five kilograms of cocaine (21 U.S.C. §§ 846 & 841(b)(1)(A)(ii)),

conspiracy to interfere with commerce by robbery (18 U.S.C. § 1951), possession

of a firearm in furtherance of a drug trafficking crime (18 U.S.C. § 924(c)(1)(A)),

and being an illegal alien in possession of a firearm (18 U.S.C. § 922(g)(5)).

      1. Federal Rule of Criminal Procedure 11(c)(1), on its face, applies to plea

negotiations, not a defendant’s jury trial waiver. Whereas “judicial involvement in

plea negotiations inevitably carries with it the high and unacceptable risk of

coercing a defendant to accept the proposed agreement and plead guilty,” United

States v. Bruce, 976 F.2d 552, 556 (9th Cir. 1992), Ramirez-Ramirez contested his

guilt in a bench trial. Moreover, a colloquy is required in other situations when a

defendant waives a jury trial, see, e.g., United States v. Duarte-Higareda, 113 F.3d

1000, 1003 (9th Cir. 1997), and this creates inherent tension between Rule

11(c)(1)’s proscription of judicial participation and a jury trial waiver.

      2. The district court’s colloquy adequately addressed the criteria described

in United States v. Cochran, 770 F.2d 850, 852 (9th Cir. 1985). With respect to

precautions that would have been taken in a jury trial to avoid prejudice from the

alien in possession of a firearm charge, the district court did not need to “explain to


                                           2
the defendant the strategic ramifications of the decision” to waive a jury trial.

United States v. Reyes, 603 F.2d 69, 72 (9th Cir. 1979) (waiver of 12-person jury).

      3. Ramirez-Ramirez did not present any evidence tending to show “a lack of

intent or lack of capability to deal in the quantity of drugs charged.” United States

v. Yuman-Hernandez, 712 F.3d 471, 475 (9th Cir. 2013). Ramirez-Ramirez’s

argument that there was no evidence that he was predisposed mis-perceives the

burden of proof. Id.

      4. Although generally a “district court is obligated to make express factual

findings as to whether the defendant met” his or her burden to show sentencing

entrapment by a preponderance of the evidence, United States v. Riewe, 165 F.3d

727, 729 (9th Cir. 1999), here, Ramirez-Ramirez presented no credible evidence to

satisfy his burden. Consequently, the district court’s findings were adequate.

      AFFIRMED.




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