Summary Calendar UNITED STATES OF AMERICA v. Ramon Uresti-Careaga

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40632
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
RAMON URESTI-CAREAGA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-1627-2
Before JOLLY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Ramon Uresti-Careaga was convicted of being an alien admitted to the
United States on a nonimmigrant visa in possession of ammunition. The district
court sentenced him to serve 15 months in prison and a three-year term of
supervised release. Uresti-Careaga now appeals his conviction.
Uresti-Careaga argues that the district court erred by denying his motion
to dismiss the indictment. He contends that the indictment should have been
dismissed because the statute of conviction, 18 U.S.C. § 922(g)(5)(B) is void for
United States Court of Appeals
Fifth Circuit
F I L E D
June 16, 2008
Charles R. Fulbruge III
Clerk

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vagueness and because the charges against him arose in circumstances giving
rise to entrapment by estoppel. We review Uresti-Careaga’s void for vagueness
argument for plain error due to his failure to present it to the district court. See
United States v. Vasquez, 216 F.3d 456, 459 (5th Cir. 2000). Our review of
§ 922(g)(5)(B) shows that it is sufficiently clear as to “provide[] a person of
ordinary intelligence a reasonable opportunity to know what is proscribed.” See
United States v. Brewer, 835 F.2d 550, 553 (5th Cir. 1987). Uresti-Careaga’s void
for vaguness argument is thus unavailing. See id.
Uresti-Careaga’s entrapment by estoppel argument is likewise unavailing.
Uresti-Careaga argues that he had a valid entrapment by estoppel defense
because he was not informed that he could not possess the ammunition. A
criminal defendant may raise a defense of entrapment by estoppel only “when
a government official or agent actively assures a defendant that certain conduct
is legal and the defendant reasonably relies on that advice and continues or
initiates the conduct.” United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th
Cir. 1996) (internal quotations and citation omitted); see also United States v.
Spires, 79 F.3d 464, 466 (5th Cir. 1996) (“The focus of the [entrapment by
estoppel] inquiry is on the conduct of the government not the intent of the
accused.”).
We have not decided whether a federally licensed firearms dealer is a
federal official for purposes of the entrapment by estoppel defense. We need not
decide this issue to dispose of this claim. Even if we assume arguendo that such
a dealer may be considered a federal official for purposes of the entrapment by
estoppel defense, then Uresti-Careaga is still not entitled to relief. The evidence
adduced at both the motions hearing and trial does not show that either the
firearms dealer or another government official affirmatively represented to
Uresti-Careaga that he could legally possess ammunition. The record thus
refutes Uresti-Careaga’s claim of entrapment by estoppel. See Trevino-Martinez,
86 F.3d at 69.

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Uresti-Careaga complains that he did not know his possession of the
ammunition was unlawful; however, a § 922(g)(5)(B) violation is not a specific
intent crime. See 18 U.S.C. § 924(a)(2); Dixon v. United States, 548 U.S. 1, 5
(2006). To obtain a conviction, the Government was required to prove that
Uresti-Careaga knowingly possessed the ammunition, not that he knew his
conduct violated the law. See Dixon, 548 U.S. at 5.
Uresti-Careaga argues that the district court erroneously denied his
motion to suppress the evidence against him. He argues that statements he
made to an ATF agent before the agent identified himself as a government
official should have been suppressed because these statements were made before
Uresti-Careaga was advised of his rights pursuant to Miranda v. Arizona, 384
U.S. 436 (1966). We review the district court’s factual findings made in
connection with the motion for clear error, and we review its legal decisions de
novo. United States v. Outlaw, 319 F.3d 701, 704 (5th Cir. 2003); United States
v. Vasquez, 298 F.3d 354, 356 (5th Cir. 2002). We consider the evidence in the
light most favorable to the party that prevailed below. United States v. Laury,
985 F.2d 1293, 1314 (5th Cir. 1993).
Miranda warnings are not required prior to conversations between
suspects and undercover agents because the coercive atmosphere generated by
a custodial interrogation is lacking. Illinois v. Perkins, 496 U.S. 292, 296-97
(1990). The disputed conversation is analogous to a conversation with an
undercover agent. Consequently, no Miranda warnings were required, and
Uresti-Careaga has shown no error in connection with the denial of his motion
to suppress. See id.
Uresti-Careaga contends that the district court erred by denying his
motion in limine, which sought to prevent the admission of certain receipts into
evidence. Given the overwhelming evidence of guilt and the district court’s
limiting instruction, our review of the record shows that any error resulting from
the admission of the receipts was harmless. See United States v. Gadison, 8 F.3d

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186, 192 (5th Cir. 1993) (“[T]he district court minimized any potential undue
prejudice by instructing the jury that they were not to consider the conviction in
deciding whether [the defendant] committed the charged offense, but only for the
purposes of establishing intent and assessing credibility.”); see also Kotteakos v.
United States, 328 U.S. 750, 776 (1946). Consequently, Uresti-Careaga has not
shown that he should receive relief in connection with this claim.
The judgment of the district court is AFFIRMED.

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