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

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No. 15-11055

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Ramos’ first request occurred at sentencing. In 1993, a jury convicted 

him of various cocaine-related offenses. The presentence investigation report

(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. When combined with his 

criminal-history category of III, Ramos’ resulting Guidelines sentencing range 

was 360 months to life imprisonment. 

Ramos objected to, inter alia, the firearm enhancement; the court 

overruled the objection and sentenced him to 360 months’ imprisonment. 

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 in 2003, when he filed a § 3582(c)(2) 

sentence-reduction motion under Guidelines Amendment 505. That 

amendment deleted the portion of the drug-quantity table providing for a baseoffense 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, under the amendment, Ramos’ 

base-offense level would have been 38, and his total offense level (with the twolevel firearm enhancement) would have been 40. The district court denied 

Ramos’ motion, however, because the offense-level reduction did not change 

his Guidelines sentencing range.

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On appeal, Ramos contended our court had previously affirmed his twolevel firearm enhancement as harmless error. United States v. Ramos, 78 F. 

App’x 400, 400–01 (5th Cir. 2003). Essentially, he asserted that, because 

Amendment 505 reduced his offense level by two levels, that error was no 

longer harmless, because the combined four levels would have lowered his total

offense level to 38. See id. In affirming, our court noted the firearm 

enhancement was not affirmed as 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 

abuse its discretion in denying Ramos’ motion. See id. 

This appeal concerns Ramos’ third request, his current § 3582(c)(2) 

motion under Amendment 782. That amendment raised to 450 kilograms the 

amount of cocaine required for a base-offense level of 38. See U.S.S.G., supp. 

to app. C, amend. 782. Ramos claims that, had the court granted his prior 

sentence-reduction requests, and if it were to grant his current motion, his 

total offense level would be reduced to 36, resulting in an amended Guidelines 

range 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-offense 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 Guidelines 

sentencing range. See id. Therefore, even taking into account a two-level 

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reduction under Amendment 505, his total offense level remains at 40, and his 

Guidelines range is unchanged.

Accordingly, because Amendment 782 did “not have the effect of lowering 

[his] applicable guideline range”, Ramos was not eligible for a reduction under 

§ 3582(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.

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