Case: 12-10371       Document: 00512126702         Page: 1     Date Filed: 01/28/2013




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

                                                                            FILED
                                                                         January 28, 2013
                                     No. 12-10371
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

DAVID ANTHONY RAMOS,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-185-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       David Anthony Ramos appeals his sentence of 210 months’ imprisonment
imposed pursuant to his guilty-plea conviction for distributing, and possessing
with intent to distribute, methamphetamine. See 21 U.S.C. § 841(a)(1), (b)(1)(C).
He challenges only the district court’s applying a two-level enhancement for
maintaining a premises for the purposes of manufacturing or distributing a
controlled substance. See U.S.S.G. § 2D1.1(b)(12).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-10371

      The Guideline at issue, § 2D1.1(b)(12), became effective November 2010.
At the time of Ramos’ offense, application note 28 explained the enhancement
at issue applied “to a defendant who knowingly maintains a premises . . . for the
purpose of manufacturing or distributing a controlled substance”. Supplement
to the 2010 Guidelines Manual (effective 1 Nov. 2010), U.S.S.G. § 2D1.1 cmt.
n.28. A subsequent amendment to the application note, effective 1 November
2011, added that it also included the “storage of a controlled substance for the
purpose of distribution”. U.S.S.G. App. C, Vol. III, Amend. 750, at 391, 396.
Although the offense ended before the amendment to the note, Ramos was
sentenced after the amendment and the 2011 Guidelines Manual was used in his
sentencing.
      Although post-Booker, the Sentencing Guidelines are advisory only, and
a properly-preserved objection to an ultimate sentence is reviewed for
reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the Guideline-sentencing range for use in deciding the
sentence to impose. Gall v. United States, 

, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines is
reviewed de novo; its factual findings, only for clear error. E.g., United States v.
Cisneros-Gutierrez, 

, 764 (5th Cir. 2008); United States v. Villegas,

, 359 (5th Cir. 2005).
      It is arguable that, as the Government contends, Ramos failed to preserve
the specific error he now asserts, such that only plain-error review would apply;
in any event, his claim fails even under the standard applied to preserved
objections. See United States v. Winkler, 

, 696 n.1 (5th Cir. 2011).
      Ramos maintains Congress, in directing the Sentencing Commission to
enhance penalties where the premises is used for manufacturing or distributing
illegal drugs, specifically excluded from the scope of the advisory Guideline an
establishment maintained only for “storing” or “using” a controlled substance.
As discussed, at the time of his offense, application note 28 did not include

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                                   No. 12-10371

storage of illegal narcotics for distribution as conduct covered by the
enhancement. Ramos further contends the fact that he occasionally sold drugs
from his home does not support application of the advisory Guideline § 2D1.1(b)(12)
enhancement because the use of that house for those sales was incidental to his
use of it as his residence.
      Ramos is correct that, at the time of his offense, “storage” was not
specifically included in either Guideline § 2D1.1(b)(12) or application note 28.
The relevant version of the Guideline and application note, however, are not
those in effect at the time of Ramos’ offense, but those in effect at the time of his
sentencing. United States v. Rodarte-Vasquez, 

, 322 (5th Cir. 2007)
(“A sentencing court must apply the version of the [S]entencing [G]uidelines
effective at the time of sentencing unless application of that version would violate
the Ex Post Facto Clause of the Constitution.”) (internal quotation marks
omitted; emphasis added).
      Along that line, Ramos does not claim application of the 2011 advisory
Guidelines, including the application-note amendment adding “storage” as
conduct triggering the § 2D1.1(b)(12) enhancement, was an ex post facto
violation: “Amendments to the [G]uidelines and their commentary intended only
to clarify, rather than effect substantive changes, may be considered even if not
effective at the time of the commission of the offense”. United States v. Solis,

, 797 (5th Cir. 2012) (internal quotation marks omitted; emphasis
in original). The 2011 amendment to the commentary was expressly intended
to “clarify[] that distribution includes storage of a controlled substance for the
purpose of distribution” and triggers imposition of the Guideline § 2D1.1(b)(12)
enhancement. U.S.S.G. App. C, Vol. III, Amend. 750, at 396.
      Finally, Ramos fails to show the court’s fact-finding and inferences from
the record that one of his primary uses of the home was to store narcotics for
distribution were unreasonable or implausible in the light of the record as a



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whole. See United States v. Caldwell, 

, 290 (5th Cir. 2006).
Accordingly, there was no clear error.