     Case: 18-50975      Document: 00515174645         Page: 1    Date Filed: 10/25/2019




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

                                                                             FILED
                                    No. 18-50975                      October 25, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.


JAZMIN RAMON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:18-CR-164-1


Before BENAVIDES, DENNIS, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Jazmin Ramon appeals the 97-month sentence imposed following her
guilty plea conviction for possession with intent to distribute five grams or
more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
(b)(1)(B), on the grounds that it is procedurally and substantively
unreasonable.      She asserts that the district clearly erred in treating four



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-50975    Document: 00515174645     Page: 2   Date Filed: 10/25/2019


                                 No. 18-50975

ounces of unseized methamphetamine as actual methamphetamine. She also
argues for the first time that (1) the district court procedurally and
substantively erred by failing to order her federal sentence to run concurrently
to any sentences that may be imposed for three Texas cases that involved
possession or distribution of methamphetamine because they constituted
relevant conduct for the instant offense and (2) the district court’s assignment
of a criminal history point for a deferred adjudication sentence imposed in one
of those cases was erroneous because it was relevant conduct and her guilt was
never adjudicated. Pursuant to Gall v. United States, 552 U.S. 38, 51 (2007),
this court engages in a bifurcated review of the procedural and substantive
reasonableness of a sentence imposed by the district court. United States v.
Delgado-Martinez, 564 F.3d 750, 751–52 (5th Cir. 2009).
      Where error is preserved, we review the district court’s interpretation or
application of the Sentencing Guidelines de novo, and its factual findings,
including its drug quantity calculations, for clear error.     United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v.
Betancourt, 422 F.3d 240, 246 (5th Cir. 2005). The district court did not clearly
err in treating the unseized methamphetamine as actual methamphetamine.
See United States v. Dinh, 920 F.3d 307, 313-14 (5th Cir. 2019); United States
v. Solis, 299 F.3d 420, 462 (5th Cir. 2002); U.S.S.G. § 2D1.1, cmt. (n.5).
Because that purity level used by the district court is not implausible in light
of the record as a whole, the district court did not clearly or reversibly err in
assigning Ramon a base offense level of 30. See Dinh, 920 F.3d at 313-14; Solis,
299 F.3d at 462.
      Ramon’s remaining issues are reviewable for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009); United States v. Mondragon-Santiago,
564 F.3d 357, 368 (5th Cir. 2009). Based on the record before it and the



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                                 No. 18-50975

commentary to § 5G1.3(c), Ramon has not established that the district court’s
failure to sua sponte exercise its authority to order Ramon’s federal sentence
to run concurrently with any potential state sentence constituted reversible
plain error. See Puckett, 556 U.S. at 135; Setser v. United States, 566 U.S. 231,
237-39 (2012); § 5G1.3, cmt. (n.3.). Nor has Ramon shown that the district
court plainly erred in assigning a criminal history point for her prior Texas
deferred adjudication sentence. See Puckett, 556 U.S. at 135; United States v.
Giraldo-Lara, 919 F.2d 19, 22-23 (5th Cir. 1990); § 4A1.2(f).
      AFFIRMED.




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