     Case: 15-41074      Document: 00513659498         Page: 1    Date Filed: 08/31/2016




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

                                      No. 15-41074
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          August 31, 2016

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

RAMIRO RUIZ, also known as Edgar Ramiro Ruiz-Meraz,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-126-1


Before STEWART, Chief Judge, CLEMENT and HAYNES, Circuit Judges.
PER CURIAM:*
       In May 2013, a confidential source, who was supervised by law
enforcement agents, purchased 114 liters (411,000 grams) of liquid
methamphetamine at a residence in Rio Grande City, Texas. The drugs were
taken to Dallas, where an undercover Drug Enforcement Administration
(DEA) agent transported them to a retail store in Lewisville, Texas. Ramiro
Ruiz and his uncle, Eric Torres Castillo, arrived at the store. Ruiz entered the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41074
agent’s vehicle and paid him $11,000 in exchange for the liquid
methamphetamine. Ruiz and Castillo then left in two separate cars; Ruiz drove
the car with the methamphetamine. The DEA agents followed Ruiz to a home
in Garland, Texas. The agents knocked on the front door, entered the house,
and found significant quantities of methamphetamine. Ruiz and another man,
Javier Ayala Sanchez, attempted to flee the house, but agents caught and
arrested them.
      Ruiz informed the DEA agents that Castillo planned to pay him $1000
for transporting the methamphetamine. Ruiz admitted to knowing that he was
transporting drugs, but he believed that the substance was cocaine. While
searching the house, the DEA agents found at least 9,561 grams of actual d-
methamphetamine and 443.6 grams of actual methamphetamine. The agents
also found 2.207 grams of a mixture or substance containing a detectable
amount of methamphetamine. The liquid purchased by Ruiz was sent to the
DEA laboratory, which verified that it was a mixture or substance containing
a detectable amount of methamphetamine. Agents also discovered notebooks
with drug ledgers; a 9 millimeter caliber semiautomatic pistol and two
magazines; a digital scale; and $1220 and documents bearing Ruiz’s name in a
bedroom. Additional investigation revealed that the house was used as a drug
conversion laboratory. Ruiz had lived at the house with his uncle since
February 2013. Sanchez had lived there for about one month, and told agents
that approximately 12 to 14 pounds of methamphetamine and a handgun were
located inside the house.
      Ruiz was indicted for a conspiracy to possess with the intent to
manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846.
He pleaded guilty. His plea agreement stipulated to 135 months of
imprisonment. He admitted that he agreed with one or more persons to
“knowingly and intentionally possess with the intent to distribute and dispense
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                                No. 15-41074
15 kilograms of a mixture or substance containing a detectable amount of
methamphetamine or 1.5 kilogram of methamphetamine (actual).” He also
admitted   to   assisting   co-conspirators    with   various    quantities    of
methamphetamine, which would then be distributed to other co-conspirators
and co-defendants in the Eastern and Northern Districts of Texas.
      At Ruiz’s initial sentencing, the district court rejected his plea
agreement. The district court expressed concern that the stipulated-to
sentence was half of the minimum guidelines range for his offense as reflected
in his Presentence Report (“PSR”). Ruiz’s PSR was revised, and the parties
again appeared before the district court. The parties orally stipulated to a
sentence of 288 months, and the prosecutor stated that, “in essence,” he was
seeking a minor role adjustment for Ruiz. The district court noted that there
was no provision in the PSR crediting the adjustment, and thus set his
sentence hearing for a later date to give the probation department time to
revise the PSR. Ruiz withdrew his guilty plea, and soon thereafter again
pleaded guilty to the indictment but with the ability to appeal. Another PSR
was prepared. Because Ruiz had stipulated to being responsible for at least 15
kilograms of a mixture or substance containing a detectable amount of
methamphetamine or 1.5 kilograms of actual methamphetamine, his base
offense level was 38. The PSR applied the following enhancements: (1) a two-
level enhancement under § 2D1.1(b)(1) because the offense involved a firearm;
(2) a two-level enhancement under § 2D1.1(b)(12) because he manufactured,
distributed, or stored methamphetamine at the house; and (3) a two-level
enhancement under § 2D1.1(b)(13)(A) because hazardous waste was removed
from the premises. After a reduction of three levels for acceptance of
responsibility, Ruiz’s total offense level was 41. U.S.S.G. § 3E1.1(a),(b). The
probation officer determined that Ruiz did not qualify for a role adjustment
under U.S.S.G. §§ 3B1.1 or 3B1.2. With a criminal history score of 0 and a
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                                 No. 15-41074
criminal history category of I, the advisory guidelines range of imprisonment
was 324-405 months.
      At sentencing, the district court sua sponte found that the hazardous
waste enhancement did not apply. It adopted the remaining factual findings of
the PSR and determined that Ruiz’s adjusted total offense level was 39,
resulting in a new guideline range of 262-327 months of imprisonment.
      Ruiz’s counsel told the court that Ruiz wished to object to the firearm
enhancement, but noted that he explained to Ruiz that the law did not support
the objection. The district court agreed. Ruiz then asked the court “if those
points can be removed about the house.” Ruiz’s counsel clarified that Ruiz was
referring to the premises enhancement and that he had informed Ruiz that the
issue was foreclosed by circuit precedent. The district court confirmed that
there was no basis to negate the enhancement. It sentenced Ruiz to 262 months
of imprisonment and a five-year term of supervised release. Ruiz appealed.
                                       I.
      We review preserved challenges to sentences, whether inside or outside
the guidelines range, for an abuse of discretion. Gall v. United State, 552 U.S.
38, 51 (2007). We “must first ensure that the district court committed no
significant procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Id. In
making this determination, we review the district court’s interpretation and
application of Sentencing Guidelines de novo and its factual findings for clear
error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). If
there is no procedural error, we “should then consider the substantive
reasonableness of the sentence imposed under an abuse-of-discretion
standard.” Gall, 552 U.S. at 51. If a challenge is not preserved for appeal, we
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                                  No. 15-41074
review for plain error. United States v. Juarez, 626 F.3d 246, 253-54 (5th Cir.
2010).
                                       II.
      Ruiz argues that his sentence is both procedurally and substantively
unreasonable, raising five separate errors by the district court. He further
contends that his sentence violates the Eighth Amendment. We address each
argument in turn.
A.    Procedural and Substantive Unreasonableness
      1.    Drug Quantity
      Ruiz argues that his base offense level of 38 was unreasonable because
the district court erred by attributing to him the entire amount of the drugs
involved in the conspiracy, rather than making an individualized finding. He
contends that United States v. Haines, 803 F.3d 713 (5th Cir. 2015), requires
the district court to make a specific finding as to the drug quantity attributable
to him. His arguments fail.
      We apply plain error because Ruiz did not preserve this issue. Here, the
district court did not plainly err in attributing the entirety of the drugs
involved in the conspiracy to Ruiz. Haines is inapposite. In that case, we simply
held that “for purposes of statutory minimums at sentencing, the relevant
quantity is the quantity attributable to the individual defendant.” 803 F.3d at
742. But Ruiz does not challenge the calculation of his mandatory minimum
sentence. See United States v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir.), cert.
denied, 136 S. Ct. 2477 (2016). He does not present any evidence to rebut the
quantity of drugs listed in the PSR and relied upon by the district court. Thus,
the district court did not plainly err in failing to make a specific finding
regarding the amount of drugs attributable to Ruiz.




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                                No. 15-41074
      2.    Dangerous Weapon Enhancement
      Ruiz argues that the district court erred by applying a two-level firearm
enhancement under § 2D1.1(b)(1) because there was no evidence that he
possessed the gun seized from his uncle’s house. He argues that gun was found
in the master bedroom, and thus he had no possession or control over it. Ruiz’s
arguments again fall short.
      Section 2D1.1(b)(1) provides for a two-level offense increase “[i]f a
dangerous weapon (including a firearm) was possessed” during certain drug
offenses. The government must prove that Ruiz possessed the weapon by a
preponderance of the evidence. Either personal possession or possession by
another that was reasonably foreseeable to Ruiz is sufficient. Cisneros-
Gutierrez, 517 F.3d at 764-65. If the government satisfies this burden, Ruiz
“can only avoid the enhancement by showing that ‘it was clearly improbable
that the weapon was connected with the offense.’” United States v. King, 773
F.3d 48, 53 (5th Cir. 2014) (quoting United States v. Ruiz, 621 F.3d 390, 396
(5th Cir. 2010)). Here, the DEA agents arrested Ruiz fleeing a drug conversion
house after purchasing a large amount of methamphetamine. A search of the
house revealed a pistol, drug ledgers, a digital scale, various quantities of
methamphetamine, cash, and documents bearing Ruiz’s name. Ruiz had lived
in the house since February 2013. A preponderance of the evidence established
a temporal and spatial relationship between the firearm and the drug
conspiracy between Ruiz, Castillo, and Sanchez. The evidence also
demonstrates that possession of the firearm by either Sanchez or Castillo was
foreseeable by Ruiz. See Cisneros-Gutierrez, 517 F.3d at 764-66; United States




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                                      No. 15-41074
v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010). Thus, the district court did
not err when it applied the two-level enhancement. 1
       3.     Premises Enhancement
       Ruiz argues that the district court erred by applying the two-level
enhancement under § 2D1.1(b)(12) for maintaining a premises for the purpose
of manufacturing or distributing a controlled substance because he neither
owned nor maintained the property. He argues that he only recently moved to
the house prior to his arrest and that he did not control access to the house or
activities within it. Ruiz’s arguments are without merit.
       Section 2D1.1(b)(12) provides for a two level increase “[i]f the defendant
maintained a premises for the purpose of manufacturing or distributing a
controlled substance.” In determining whether Ruiz maintained the premises
we should consider “(A) whether [Ruiz] held a possessory interest in (e.g.,
owned or rented) the premises and (B) the extent to which [Ruiz] controlled
access to, or activities at, the premises.” U.S.S.G. § 2D1.1(b)(12) comment
(n.17). Although Ruiz argues that he did not own or maintain the premises, he
admitted that he lived there since February 2013. There is also no evidence
that Ruiz’s access to the house was in anyway limited. He transported a large
amount of methamphetamine to the house shortly before his arrest, and an
investigation revealed that the house was used as a drug conversion
laboratory. Ruiz did not offer any evidence to rebut the PSR’s findings, and the
district court was free to rely upon it. See United States v. Nava, 624 F.3d 226,
231 (5th Cir. 2010) (noting that the PSR generally bears sufficient indicia of
reliability to be considered as evidence by the district court in making factual


       1 We apply de novo review because Ruiz’s arguments “do[] not concern the specifics of
the fact finding, but, rather, whether the facts found are legally sufficient to support the
enhancement.” Zapata-Lara, 615 F.3d at 390. To the extent Ruiz challenges the fact finding
of the district court in applying the enhancement, we find no clear error. See King, 773 F.3d
at 52.
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                                    No. 15-41074
determinations); see also United States v. Rodney, 532 F. App’x 465, 473 (5th
Cir. 2013) (holding that district court did not clearly err in finding that
defendant maintained a shed to distribute drugs where the evidence showed
that defendant had unimpeded access to it). Thus, the district court properly
applied the two-level enhancement under § 2D1.1(b)(12) to Ruiz.
      4.     Minor Role Adjustment
      Ruiz argues that the district court erred by failing to apply a minor role
adjustment under U.S.S.G. § 3B1.2 because he had a minimal role in the
offense. For support, Ruiz points to comments made by Assistant United States
Attorney Ernest Gonzalez at the plea announcement hearing. Gonzalez
believed that Ruiz qualified for a minor role adjustment because “he had
limited time of involvement [in the conspiracy] in comparison to the co-
defendant.” This court, like the district court, is not bound by the
recommendations of the parties to apply a sentencing adjustment. See United
States v. Rodriguez, 62 F.3d 723, 725 (5th Cir. 1995).
       Guidelines § 3B1.2(b) provides for a decrease of two levels “[i]f the
defendant was a minor participant in any criminal activity.” “A minor
participant is one ‘who is less culpable than most other participants, but whose
role could not be described as minimal.’” United States v. Silva-De Hoyos, 702
F.3d 843, 846 (5th Cir. 2012) (quoting § 3B1.2 cmt. n.5). “It is not enough that
a defendant does less than other participants; in order to qualify as a minor
participant, a defendant must have been peripheral to the advancement of the
illicit activity.” Id. at 846-47 (citation omitted).
      We apply plain error review because Ruiz did not object to the district
court’s decision not to apply the adjustment. Ruiz’s conceded that he “assist[ed]
co-conspirators with multi-gram quantities of methamphetamine from various
sources which would then be distributed to other co-conspirators and co-
defendants during the term of conspiracy in the Eastern and Northern
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                                       No. 15-41074
Districts of Texas.” He also stipulated to the amounts of methamphetamine
listed in the indictment. The DEA Agents observed Ruiz purchase and
transport a large quantity of liquid methamphetamine to his home. Ruiz’s role
in the conspiracy was not peripheral and, thus, the district court did not plainly
err by not applying the minor role adjustment under § 3B1.2.
       5.     Safety Valve Reduction
       Ruiz argues that the district court plainly erred by failing to sua sponte
apply the two-level reduction pursuant to U.S.S.G. § 2D1.1(b)(17) because he
satisfied the safety valve requirements under U.S.S.G. § 5C1.2, including the
requirement that he did not actually or constructively possess a weapon during
the offense. The government agrees that the record does not show that Ruiz
had actual or constructive possession of the gun, but it argues that Ruiz has
not shown that any error affected his substantial rights.
       As an initial matter, we are not bound by the government’s concessions.
See, e.g., United States v. Vargas-Garcia, 434 F.3d 345, 348 (5th Cir. 2005). To
qualify for the safety valve provision under U.S.S.G. § 5C1.2, Ruiz must meet
five criteria. 2 Particularly relevant here is the requirement that he not possess


       2The criteria are as follows:
             (1)     the defendant does not have more than 1 criminal history
             point . . .;
             (2)     the defendant did not use violence or credible threats of
             violence or possess a firearm or other dangerous weapon (or
             induce another participant to do so) in connection with the
             offense;
             (3)     the offense did not result in death or serious bodily injury
             to any person;
             (4)     the defendant was not an organizer, leader, manager, or
             supervisor of others in the offense . . . ; and
             (5)     not later than the time of the sentencing hearing, the
             defendant has truthfully provided to the Government all
             information and evidence the defendant has concerning the
             offense or offenses that were part of the same course of conduct
             or of a common scheme or plan . . . .
U.S.S.G. § 5C1.2(1)-(5).
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                                   No. 15-41074
a firearm in connection with the offense. U.S.S.G. § 5C1.2(2). This provision
encompasses both actual and constructive possession. United States v. Matias,
465 F.3d 169, 174 (5th Cir. 2006). A defendant has constructive possession of
a firearm, when he individually has “ownership, dominion or control over the
[firearm] . . . or dominion or control over the premises in which the [firearm] is
concealed.” Id. at 173 (quoting United States v. Fields, 72 F.3d 1200, 1212 (5th
Cir. 1996)).
               However, where two or more persons jointly occupy
               the place where a firearm is found, mere control or
               dominion of that place is, by itself, insufficient to
               establish constructive possession. Evidence showing
               at least a plausible inference that the defendant had
               knowledge of and access to the weapon is necessary to
               establish constructive possession.

Fields, 72 F.3d at 1212. Ruiz contends that there is no evidence proving that
he had actual or constructive possession of the gun. But Ruiz has the burden
of establishing his eligibility for the safety valve reduction. See United States
v. Gonzalez-Candelario, 312 F. App’x 613, 614 (5th Cir. 2009). Although the
government may not have proven that Ruiz actually possessed the gun, the
record indicates that Ruiz may have constructively possessed it. Ruiz was
involved in a drug conspiracy and was arrested after buying and transporting
a large amount of liquid methamphetamine. The gun was found inside the
meth-house where Ruiz had lived for a few months. Co-conspirator Sanchez
told agents that a handgun was located inside the house, and though he had
lived at the house for a shorter period of time than Ruiz, he knew about the
gun. Although Sanchez’s knowledge of the gun does not affirmatively establish
Ruiz’s knowledge and access to the weapon, it does, when taken in light of the
other facts in the record, create a plausible inference that Ruiz had knowledge
and access. In other words, Ruiz has not met his burden of establishing that

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                                      No. 15-41074
the safety valve reduction applies. The district court did not commit clear or
obvious error in declining to apply this reduction. 3 See Puckett, 556 U.S. at 135
(explaining plain error review).
       As discussed, all of Ruiz’s procedural claims of error are without merit.
Additionally, Ruiz’s contention that his sentence is substantively unreasonable
also fails. “A sentence within the Guidelines range is presumed reasonable on
appeal.” United States v. Tuma, 738 F.3d 681, 695 (5th Cir. 2013) (quoting
United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009)). Ruiz
was sentenced within the proper Guidelines range, and the district court
adequately considered the factors set forth in 18 U.S.C. § 3553(a). Ruiz has
failed to rebut the presumption of reasonableness for his sentence. See id. (“The
presumption is rebutted only upon a showing that the sentence does not
account for a factor that should receive significant weight, it gives significant
weight to an irrelevant or improper factor, or it represents a clear error of
judgment in balancing sentencing factors.” (quoting United States v. Diaz
Sanchez, 714 F.3d 289, 295 (5th Cir. 2013))). Thus, the district court did not
abuse its discretion by sentencing Ruiz within the Guidelines.
B.     Eighth Amendment
       Lastly, Ruiz argues that his sentence violates the Eighth Amendment.
He contends that his 262 month long sentence constitutes cruel and unusual
punishment because the length of his sentence is grossly disproportionate to
his crime.




       3 Even more, we have our doubts that Ruiz would be able to establish that he met the
fifth requirement of U.S.S.G. § 5C1.2, particularly in light of plain error review. There is
some evidence that Ruiz quickly cooperated with the government. But, over the course of
several hearings, he repeatedly changed his mind on his degree of involvement with the
conspiracy. His see-sawing seems inconsistent with the full and truthful debriefing required
by § 5C1.2(5). See, e.g., United States v. Molina-Borrayo, 569 F. App’x 232, 234-36 (5th Cir.
2014).
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                                  No. 15-41074
      “We have recognized that the Eighth Amendment ‘preclude[s] a sentence
that is greatly disproportionate to the offense, because such sentences are
‘cruel and unusual.’’” United States v. Hebert, 813 F.3d 551, 565 (5th Cir. 2015)
(quoting McGruder v. Puckett, 954 F.2d 313, 315 (5th Cir.1992)). “On review, .
. . this court does not substitute its judgment for that of the legislature nor of
the sentencing court as to the appropriateness of a particular sentence; it
should decide only if the sentence is within the constitutional limitations.”
United States v. Thomas, 627 F.3d 146, 160 (5th Cir. 2010) (internal quotation
marks and citations omitted). Our review is narrow and successful Eighth
Amendment challenges to the length of prison terms will be rare. Id.
      Ruiz’s Eighth Amendment challenge is not the rare case. He was
sentenced within the Guidelines, and he has failed to show that his sentence
is greatly disproportionate to his offense. He has thus failed to show that his
sentence constitutes cruel and unusual punishment.
                                       III.
      For the foregoing reasons, we AFFIRM.




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