### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-10371 Summary Calendar

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 inte nt 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 p r e m ises for the purposes of manufacturing or distributing a controlled substance. See U.S.S.G. § 2D1.1(b)(12). U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Janu ary28 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

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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 (effe c t ive 1 Nov. 2010), U.S.S.G. § 2D1.1 cmt. n.28. A subsequent amendmen t to the application note, effective 1 November 20 1 1 , added that it also included the “storage of a controlled substance for the purpose of distribu ti o n”

. U

. S .S.G. App. C, Vol. III, Amend. 750, at 391, 396. Although the offense ended before the amendment t o th e n o te, 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 i s reviewed for reasonableness under an abuse-of-discretion standard, the di s t rict court must

s till properly calculate the Guideline-sentencing range for use in deciding the sentence to impose. Gall v. United St a t e s , 552 U.S. 38, 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 , 517 F.3d 751, 764 (5th Cir. 2008); United States v. Villegas , 404 F.3d 355, 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 clai m f ails even under the standard applied to preserved objections. See United States v. Winkler , 639 F.3d 692, 696 n.1 (5th Cir. 2011). Ramos maintains Congress, in directing the Sentenc i n g C ommission 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 substan c e. As discussed, at the time of his offense, a p p l i c ation note 28 did not include
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storage of illegal narcot i cs for distribution as conduct covered by the enhancement. Ramos further contends the fact that he occasionally sold drugs f r o m h i s h o m e d o e s n o t s u p p o r t a p p l i c a t i o n o f t h e a d v i s o r y G u i d e l i n e § 2 D 1

. 1 (b ) ( 1 2 ) enhancement because the use of that house for those sales was incidental to his use of it as his residence. Ramos is corr e c t th a t, at the time of his offense, “storage” was not specifically included in either Guideline § 2D1.1(b)(12) or application note 28. Th e r e l evant 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 , 488 F.3d 316, 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.”) (i n ternal quotation marks omitted; emphasis added). Along that line, Ramos does not claim application of the 2011 advisory Guidelines, including the ap p l i cation-note amendment adding “storage” as
c onduct triggering the § 2D1.1(b)(12) enhancement, was an ex post f a c t o viol atio n : “

Am e n d m e nt s to th e [ 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 , 675 F.3d 795, 797 (5th Cir. 2012) (internal quotation marks omitted; emphasis in original). The 2011 amendment to the commentary was expressly intended to “cla ri f

y [] 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, R amos 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 di s t rib ution were unreasonable or implausible in the light of the record a s a

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whole. See United States v. Caldwell , 448 F.3d 287, 290 (5th Cir. 2 0 0 6)

. Accordingly, there was no clear error. Id

. AFFIRMED.

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