IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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).

United States Court of Appeals

Fifth Circuit

F I L E D

January 28, 2013

Lyle W. Cayce

Clerk

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, 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 claim fails 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 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 ofthe 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, 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.”) (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,

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 “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, 448 F.3d 287, 290 (5th Cir. 2006). 

Accordingly, there was no clear error. Id.

AFFIRMED.

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