     Case: 15-11055       Document: 00513541604         Page: 1     Date Filed: 06/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                           United States Court of Appeals

                                     No. 15-11055
                                                                                    Fifth Circuit

                                                                                  FILED
                                   Summary Calendar                            June 9, 2016
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                  Plaintiff - Appellee

v.

ANDRES RAMOS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:92-CR-155-7


Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Proceeding pro se, Andres Ramos, federal prisoner # 23876-077, appeals
the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction under
Amendment 782 to the advisory Sentencing Guidelines.                      In doing so, he
contends the denial of that motion, when considered together with two
previously denied sentence-reduction requests, resulted in a total denial of a
six-level reduction to his offense level.


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 15-11055

      Ramos’ first request occurred at sentencing. In 1993, a jury convicted
him of various cocaine-related offenses. The presentence investigation report
(PSR) recommended that Ramos was responsible for 702 kilograms of cocaine.
At that time, a defendant responsible for 500–1,500 kilograms of cocaine
received a base-offense level of 40. The PSR also recommend a two-level
enhancement, pursuant to Guideline § 2D1.1(b)(1) (1993), for possession of a
firearm, which resulted in a total offense level of 42. When combined with his
criminal-history category of III, Ramos’ resulting Guidelines sentencing range
was 360 months to life imprisonment.
      Ramos objected to, inter alia, the firearm enhancement; the court
overruled the objection and sentenced him to 360 months’ imprisonment.
United States v. Ramos, 71 F.3d 1150, 1152, 1158 (5th Cir. 1995). In affirming
that sentence, our court held the district court did not err in applying the
enhancement because “the government proved a sufficient nexus between
[Ramos’] activities and the firearms to warrant the offense level increase”. Id.
at 1157.
      Ramos’ second request came in 2003, when he filed a § 3582(c)(2)
sentence-reduction motion under Guidelines Amendment 505.                  That
amendment deleted the portion of the drug-quantity table providing for a base-
offense level of 40 when a defendant was responsible for 500–1,500 kilograms
of cocaine. See U.S.S.G., app. C, vol. I, amend. 505. The amended provision
stated that a defendant responsible for 150 kilograms of cocaine would receive
a base-offense level of 38. Id. Accordingly, under the amendment, Ramos’
base-offense level would have been 38, and his total offense level (with the two-
level firearm enhancement) would have been 40. The district court denied
Ramos’ motion, however, because the offense-level reduction did not change
his Guidelines sentencing range.



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                                  No. 15-11055

      On appeal, Ramos contended our court had previously affirmed his two-
level firearm enhancement as harmless error. United States v. Ramos, 78 F.
App’x 400, 400–01 (5th Cir. 2003). Essentially, he asserted that, because
Amendment 505 reduced his offense level by two levels, that error was no
longer harmless, because the combined four levels would have lowered his total
offense level to 38.    See id.   In affirming, our court noted the firearm
enhancement was not affirmed as harmless error, but was instead affirmed on
the merits. Id. at 401. Therefore, it concluded that, because Ramos’ sentencing
range remained at 360 months to life imprisonment, the district court did not
abuse its discretion in denying Ramos’ motion. See id.
      This appeal concerns Ramos’ third request, his current § 3582(c)(2)
motion under Amendment 782. That amendment raised to 450 kilograms the
amount of cocaine required for a base-offense level of 38. See U.S.S.G., supp.
to app. C, amend. 782. Ramos claims that, had the court granted his prior
sentence-reduction requests, and if it were to grant his current motion, his
total offense level would be reduced to 36, resulting in an amended Guidelines
range of 235 to 293 months’ imprisonment. His claim fails for several reasons.
      First, despite Ramos’ repeated assertions of harmless error, our court
upheld his two-level firearm enhancement on the merits. See Ramos, 71 F.3d
at 1157; Ramos, 78 F. App’x at 401. He cannot re-litigate that issue in a
§ 3582(c)(2) proceeding. See United States v. Hernandez, 645 F.3d 709, 712
(5th Cir. 2011). Second, although Amendment 782 raised to 450 kilograms the
amount of cocaine required for a base-offense level of 38, Ramos was
responsible for more than 450 kilograms.         See § 2D1.1(c)(1).   Accordingly,
Amendment 782 did not reduce his base-offense level or his Guidelines
sentencing range. See id. Therefore, even taking into account a two-level




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                                 No. 15-11055

reduction under Amendment 505, his total offense level remains at 40, and his
Guidelines range is unchanged.
      Accordingly, because Amendment 782 did “not have the effect of lowering
[his] applicable guideline range”, Ramos was not eligible for a reduction under
§ 3582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B); see United States v. Bowman, 632 F.3d
906, 910–11 (5th Cir. 2011).
      AFFIRMED.




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