### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 11055 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ANDRES RAMOS , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:92

- CR

- 155

- 7

Before BARKSDALE, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Proceeding pro se , Andres Ramos, federal prisoner # 23876

- 077, appeals the denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction under Amendment 782 to the advisory Sentencing Guidelines. In doing so, he contends the denial of that motion, when considered together with two previously denied sentence

- reduction requests , resulted in a total denial of a six

- level reduction to his offense level.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED June 9, 2016 Lyle W. Cayce Clerk Case: 15-11055 Document: 00513541604 Page: 1 Date Filed: 06/09/2016No. 15

- 11055

2 Ramos’ first request o ccurred at sentencing. In 1993 , a jury convicted him of various cocaine

- related offenses

. The p resen tence i nvestigation r eport (PSR) recommended that Ramos was responsible for 702 kilograms of cocaine

. At that time , a defendant responsible for 500

– 1,500 kilograms of cocaine received a base

- offense level of 40. The PSR also recommend a two

- level enhancement , pursuant to Guideline § 2D1.1(b)(1) (1993), for possession of a firearm , which resulted in a total offense level of 42 . W hen combined with his criminal

- history category of III, Ramos’ resulting Guideline s sentencing range was 36 0 months to life imprisonment. Ramos objected to, inter alia , the firearm enhancement ; the court overruled the objection and sentenced him to 360 months’ imprisonme nt. United States v. Ramos , 71 F.3d 1150, 1152 , 1158 (5th Cir. 1995). In affirming that sentence, our court held the district court did not err in applying the enhancement because “the government proved a sufficient nexus between [Ramos’] activities and the firearms to warrant the offense level increase”. Id. at 1157. Ramos’ second request came i n 2003, when he filed a § 3582(c) (2) sentence

- reduction m otion under Guideline s Amendment 505

. That

a mendment deleted the portion of the drug

- quantity table providing for a base

offense level of 40 when a defendant was responsible for 500

– 1,500 kilograms of cocaine. See U.S.S.G., app. C, vol. I, amend. 505. The amended provision stated that a defendant responsible for 150 kilograms of cocaine would receive

a base

- offense level of 38. Id. Accordingly, u nder the amendment, Ramos’ base

- offense level would have been 38 , and his total offense level (with the two

level firearm enhancement) would have been 40. The district court denied Ramos’ motion, however, bec ause the offense

- level reduction did not change his Guidelines sentencing range. Case: 15-11055 Document: 00513541604 Page: 2 Date Filed: 06/09/2016No. 15

- 11055

3 On appeal, Ramos contended our court had previously affirmed his two

level firearm enhancement as harmless error

. United States v. Ramos , 78 F. App’x 400, 400

– 01 (5th Cir. 2003). Essentially, h e asserted that, because Amendment 505 reduced his offense level by two levels, that error was no longer harmless, bec ause the combined four levels would have lowered his total offense level to 38

. See i d. In affirming, our court not ed the firearm enhancement was not affirmed a s harmless error, but was instead affirmed on the merits. Id. at 401. Therefore, it concluded that, because Ramos’ sentencing range remained at 360 months to life imprisonment, the district court did not ab use its discretion in denying Ramos’ motion. See i d. This appeal concerns Ramos’ third request , his current § 3582(c)(2) motion under Amendment 782

. That a mendment raised to 450 kilograms the amount of cocaine required for a base

- offense level of 38. See U.S.S.G., supp. t o app. C, amend. 782. Ramos claim s that, had the court granted his prior sentence

- reduction requests, and if it were to grant his current motion, his total offens e level would be reduced to 36, resulting in an amended Guidelines rang e of 235 to 293 months’ imprisonment. His claim fails for several reasons. First, despite Ramos’ repeated assertions of harmless error, our court upheld his two

- level firearm enhancement on the merits. See Ramos , 71 F.3d at 1157; Ramos , 78 F. App’x at 401. He cannot re

- litigate that issue in a § 3582(c)(2) proceeding. See United States v. Hernandez , 645 F.3d 709, 712 (5th Cir. 2011). Second, although Amendment 782 raised to 450 kilograms the amount of cocaine required for a base

- offe nse level of 38, Ramos was responsible for more than 450 kilograms. See § 2D1.1(c)(1). Accordingly, Amendment 782 did not reduce his base

- offense level or his G uidelines sentencing range. See id. Therefore, even taking into account a two

- level Case: 15-11055 Document: 00513541604 Page: 3 Date Filed: 06/09/2016No. 15

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4 reductio n under Amendment 505, his total offense level remains at 40, and his Guidelines range is unchanged. Accordingly, because Amendment 782 did “ not have the ef fect of lowering [his] applicable guideline range ” , Ramos was not eligible for a reduction under § 3 582(c)(2). U.S.S.G. § 1B1.10(a)(2)(B); see United States v. Bowman , 632 F.3d 906, 910

– 11 (5th Cir. 2011). AFFIRMED. Case: 15-11055 Document: 00513541604 Page: 4 Date Filed: 06/09/2016