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United States v. Ramos-Gonzales

United States Court of Appeals, Fifth Circuit

May 24, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
LAURA RAMOS-GONZALES, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.

          PER CURIAM:

         The dispute in this case arises from the district court's decision on remand to re-impose a special condition of supervised release on the Defendant-Appellant Ramos-Gonzales. Ramos-Gonzales pleaded guilty to transporting an undocumented alien into the United States. At sentencing, the district court imposed two special conditions of supervised release-a nighttime restriction and drug surveillance. Ramos-Gonzales appealed those conditions to this court, and this court remanded for resentencing on the grounds that the district court committed plain error in failing to explain the basis for the special conditions. At the subsequent sentencing hearing, the district court re-imposed the drug surveillance condition based on Ramos-Gonzales's 2012 conviction for marijuana possession. Ramos-Gonzales now appeals the district court's second judgment. We vacate the drug surveillance special condition and affirm the sentence as modified.

         I. Background

         On October 4, 2015, Laura Ramos-Gonzales was arrested during her attempt to transport undocumented individuals into the United States under the rear seat of her vehicle in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(ii). On October 28, 2015, a Federal Grand Jury indicted Ramos-Gonzales on two counts of transporting an undocumented alien. On November 12, 2015, Ramos-Gonzales pleaded guilty to the first count pursuant to a written plea agreement. Following the plea, a presentence investigation report (PSR) was prepared, which recommended a Guidelines sentencing range of 8 to 14 months and a 3-year term of supervised release. Ramos-Gonzales did not object to these calculations. The subsequent sentencing proceedings, which represent the principal focus of this appeal, are divided into two stages, divided by an appeal and order issued by this court.

         First Sentencing

         On January 26, 2016, the district court adopted the PSR as the findings of the court and sentenced Ramos-Gonzales to 12 months in prison, followed by 3 years of supervised release and accompanied by a $100 Special Assessment. The district court imposed the "[s]tandard terms and conditions of supervision, " and, importantly, imposed a "nighttime restriction of 12 midnight to 6:00 a.m. and drug surveillance."[1] Ramos-Gonzales registered no objection to these additional conditions of supervised release at the sentencing hearing.

         First Appeal

         Ramos-Gonzales appealed despite previously failing to register an objection, arguing that the district court committed reversible plain error by imposing the drug surveillance and nighttime restriction conditions of supervised release. See Brief of Appellant, United States v. Ramos-Gonzales, No. 16-40146, 2016 WL 3770852, at *8-14 (July 7, 2016). In particular, she argued that the district court had failed to explain its reasons, and the record itself did not furnish independent evidentiary support for the restrictions. Id. at *9-10. With respect to the drug surveillance condition, Ramos-Gonzales argued that "there [was] absolutely no evidence that [she] currently uses illegal drugs, " and pointed out that the PSR indicated that she first smoked marijuana at 14 years of age and had not engaged in such activity in 25 years. Id. at *9. She also pointed out that the offense charged against her had nothing to do with drug use, nor did any of her prior offenses. Id.

         The Government moved to remand the case for reconsideration of the special conditions, agreeing with Ramos-Gonzales that "the district court commit[ed] reversible error by failing to explain the reasons for imposing special conditions of supervised release where the record is silent in support of the special conditions." The Government also agreed that the record "[did] not indicate how the supervised release special conditions of nighttime restriction and drug surveillance [were] related to the underlying offense of alien transporting or to the relevant statutory considerations under 18 U.S.C. § 3553(a)." Id. at 3. In particular, the Government stated that "[a]lthough Ramos has a 2012 conviction for possession of 44 pounds of marijuana and last smoked marijuana 25 years ago, no indication in the record exists that she has an illicit drug problem to warrant drug surveillance requiring periodic urine and/or breath, saliva, and skin tests to detect drug abuse." Id.

         We conducted an independent review of the case, and exercised our discretion to grant plain error relief, summarily remanding the case to the district court for resentencing. Order, United States v. Laura Ramos-Gonzales, No. 16-40146, at 2 (5th Cir. Aug. 17, 2016).

         Resentencing

         The district court conducted a resentencing hearing on September 27, 2016, at which time it reconsidered the special conditions. The district court vacated the nighttime restriction, because Ramos-Gonzales would be living with her children and because there was no evidence that the offense in question occurred at nighttime. The district court decided to maintain the drug surveillance condition, however. Ramos-Gonzales objected on the basis that she "didn't feel . . . the drug restrictions [applied to her] because [she had not] used drugs for many years." The district court replied: "Well you have a drug conviction. So that's going to stay and that's the way that goes."[2] Counsel for Ramos-Gonzales spoke to preserve her objection to the drug surveillance condition "as an invasion of privacy and a financial burden." A colloquy on those topics ensued. The district court concluded the discussion by asking: "Are you denying her drug conviction?" Counsel responded: "Not the ...


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