     Case: 09-50320     Document: 00511096984          Page: 1    Date Filed: 04/30/2010




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

                                                   FILED
                                                                            April 30, 2010
                                     No. 09-50320
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

FRED ANDREW RAMOS, also known as Freddie Andrew Ramos,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:08-CR-174-1


Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
         Fred Andrew Ramos appeals the 300-month, within-guidelines sentence
imposed after he pleaded guilty to one count of possession with intent to
distribute crack cocaine, one count of possession of a firearm in furtherance of
a drug trafficking crime, and two counts of possession of a firearm by a convicted
felon.
         In written objections and again at the sentencing hearing, Ramos argued
that his two prior convictions in Texas for evading arrest in a motor vehicle did

         *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50320

not constitute a crime of violence (“COV”) supporting the application of an
enhancement of his sentence. Although Ramos challenges the district court’s
treatment of his prior Texas convictions as COV within the meaning of U.S.S.G.
§ 4B1.2, he acknowledges that his argument is foreclosed under our case law and
raises the issue only to preserve it for further review. See United States v.
Harrimon, 568 F.3d 531, 535 (5th Cir. 2009) (holding that the Texas crime of
evading arrest by use of a motor vehicle is a COV, because the crime is
purposeful, violent, and aggressive). Ramos therefore concedes that under this
court’s case law the district court did not err in applying the enhancement.
      Ramos next argues that his sentence is procedurally unreasonable because
the district court failed to explain its reasons for the within-guidelines sentence
or for denying his nonfrivolous arguments for a below-guideline sentence as
required by 18 U.S.C. § 3553(c). A district court’s explanation for its imposition
of a particular sentence “allow[s] for meaningful appellate review . . . and
promote[s] the perception of fair sentencing.” Gall v. United States, 552 U.S. 38,
50 (2007). A sentence within the guidelines range will require “little
explanation,” United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), but
where a party “presents nonfrivolous reasons for imposing a different sentence
. . . the judge will normally go further and explain why he has rejected those
arguments.” Rita v. United States, 551 U.S. 338, 357 (2007).
      The parties dispute whether Ramos preserved this claim. If Ramos failed
to preserve his claim, then review would be for plain error, in which case he
would have to show that an obvious error by the district court affects his
substantial rights. See F ED. R. C RIM . P. 52(b); Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009). If he made such a showing, we would have the discretion
to correct the error but only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Puckett, 129 S. Ct. at 1429. On the
other hand, if Ramos preserved his claim and the plain error standard were not
applicable, then this court would need to consider whether the error was

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harmless or required remand. See United States v. Delgado-Martinez, 564 F.3d
750, 753 (5th Cir. 2009) (discussing harmlessness with respect to errors that
might have affected the district court’s selection of sentence, but not addressing
the harm that might affect this court’s ability to review the substantive
reasonableness of a sentence).
      After the district court announced Ramos’s sentence, the following
exchange occurred between Ramos’s attorney, Mr. Schwieger, and the court:
      MR. SCHWIEGER:             And as I’m required to do by the Fifth
                                 Circuit, Your Honor, I would object to the
                                 reasonableness of the sentence in this
                                 matter.

      THE COURT:                 You’re not required to do that by the Fifth
                                 Circuit, but you’re welcome to anyway.

      MR. SCHWIEGER:             Actually, I have to preserve error.
                                 Otherwise they review it under plain error,
                                 Your Honor.

      THE COURT:                 That is incorrect. You may be excused.

      MR. SCHWIEGER:             Thank you, Your Honor. I’m assuming
                                 that’s overruled? Or my objection?

      THE COURT:                 There’s nothing to rule on. You just made
                                 a statement.

      MR. SCHWIEGER:             Thank you, Your Honor.

      We agree with the government that Ramos’s objection failed to preserve
his procedural claim of error. For an objection to be adequate, a party must raise
the objection with sufficient specificity so that the district court is alerted to the
issue before it. See United States v. Hernandez, 64 F.3d 179, 181 (5th Cir. 1995)
(per curiam). If the defendant has failed to object on specific grounds to the
reasonableness of his sentence, thereby denying the court the opportunity to




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identify and correct any errors, we review for plain error. See United States v.
Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
      Although Ramos’s attorney made a general objection expressing some level
of disagreement with the reasonableness of the sentence, this objection was too
vague to place the district court on notice of the issue he now raises. All that
Ramos’s attorney stated was that he “object[ed] to the reasonableness of the
sentence in this matter.” A district court hearing this statement would not
reasonably discern from it that the defendant wanted further explanation of the
sentence or its reasons for denying his nonfrivolous arguments for a below-
guideline sentence. To be sure, Ramos was not required to state the issue as
clearly as appellate counsel has or, for that matter, even to cite to § 3553(c) in
order to preserve the issue for appeal. See 3B C HARLES A LAN W RIGHT ET AL.,
F EDERAL P RACTICE AND P ROCEDURE, § 842 (2d ed. 2004) (“The general rule
requiring counsel to make clear to the trial court what action they wish taken
should not be applied in a ritualistic fashion.”); see also Hernandez, 64 F.3d at
181. But absent any statement that the district court could have reasonably
interpreted as arguing for further explanation of the sentence, we cannot
conclude that Ramos preserved the issue. Furthermore, the district court’s
statement that “[t]here’s nothing to rule on” should have alerted Ramos that he
needed to clearly and specifically articulate the reasons for his objection so that
it could be preserved for appeal. Lastly, Ramos’s contentions that his efforts to
properly object were circumvented by the court are unconvincing. Ramos had
ample opportunity to ask the district court for further explanation during the
sentencing hearing, but did not. Cf. United States v. Castillo, 430 F.3d 230, 241-
43 (5th Cir. 2005) (finding it futile to require a prosecutor to formally object
where the district court was openly hostile towards the prosecutor and
continuously interrupted his attempts to formally object).
      Because Ramos did not preserve this issue for appeal, we must next decide
if the district court’s error, if any, merits vacating his sentence under the plain

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error standard. In order to show plain error, Ramos must show that (1) there
was an error; (2) the error was clear or obvious; and (3) the error affected his
substantial rights. See United States v. Henry, 288 F.3d 657, 664 (5th Cir. 2002).
The first two elements of the test are met: Our examination of the sentencing
transcript reveals that Ramos made a nonfrivolous request to justify a below-
guideline sentence. The district court denied the request without providing any
reasons, and then proceeded to sentence Ramos without explanation. We have
held that this constitutes clear or obvious error. United States v. Mondragon-
Santiago, 564 F.3d 357, 363-64 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009).
But, Ramos fails to show that an explanation would have changed the length of
his sentence, which is within the advisory guideline range. Id. at 362-63 (noting
that in order to show substantial prejudice the defendant must prove that the
error affected the sentencing outcome). Thus, Ramos has not established that
the error affected his substantial rights and we find no reversible plain error.
Id. at 365.
      Lastly, Ramos challenges the substantive reasonableness of his 300-month
sentence, arguing that the district court failed to give sufficient weight to “the
history and characteristics of the defendant” under § 3553(a). The substantive
reasonableness of a sentence is reviewed for an abuse of discretion. Gall, 552
U.S. at 51. Substantive reasonableness review entails consideration of the
totality of the circumstances surrounding the offense. Id. “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.
      In this case, Ramos requested a downward variance from the guidelines
range. The district court listened to the statements of Ramos and his attorney
but nevertheless imposed a sentence squarely within the guidelines range.
There is no indication that the court abused its discretion in weighing the §
3553(a) factors. The signed factual basis shows that Ramos was found with
another gun and more drugs a few months after being arrested on the original

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gun and drug charges. These circumstances gave rise to the additional gun
possession offense and he pleaded guilty to that offense as well as the initial
charges. In these circumstances, Ramos cannot overcome the presumption that
the within-guidelines sentence was reasonable. See Mondragon-Santiago, 564
F.3d at 367.
      AFFIRMED.




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