Filed: May 13, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4912 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE MARCIAL RAMOS-HERNANDEZ, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:09-cr-00549-JCC-1) Submitted: April 19, 2011 Decided: May 13, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. William B. Cumm
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4912 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. JOSE MARCIAL RAMOS-HERNANDEZ, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. James C. Cacheris, Senior District Judge. (1:09-cr-00549-JCC-1) Submitted: April 19, 2011 Decided: May 13, 2011 Before SHEDD, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. William B. Cummi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4912
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSE MARCIAL RAMOS-HERNANDEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00549-JCC-1)
Submitted: April 19, 2011 Decided: May 13, 2011
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, Jessica W. Knight, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Marcial Ramos-Hernandez appeals from his
convictions for various cocaine offenses and his resulting
120-month sentence. On appeal, he challenges the sufficiency of
the evidence supporting two of his convictions and asserts that
the district court relied on clearly erroneous factual findings
in determining his sentence. We affirm.
I.
A federal grand jury returned an indictment charging
Jose Marcial Ramos-Hernandez with conspiracy to distribute 500
grams or more of cocaine and three counts of distribution of
cocaine. After pleading not guilty, Ramos-Hernandez consented
to a bench trial. The evidence at trial showed that, over the
course of many transactions, undercover Detective Rafael Fortiz
purchased various items from Santos Rene Alfaro Rubio (“Rene”),
including stolen items, guns, and drugs. Specifically, Rene
sold cocaine to Fortiz on March 31 (one ounce), April 9 (one
ounce), and May 26, 2009 (four ounces). In addition, Rene
attempted to sell cocaine to Fortiz on May 19. At the May 26
sale, Rene and Ramos-Hernandez were arrested.
Rene pled guilty to offenses arising from these
transactions and testified at Ramos-Hernandez’s trial. He
stated that he obtained the cocaine sold to Fortiz from
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Ramos-Hernandez. In turn, Ramos-Hernandez obtained the cocaine
from Nelson Rivas Palacios, also known as Chepe. While evidence
showed that Rene initially told Fortiz that his supplier for the
March 31 transaction was not Ramos-Hernandez, Rene confirmed at
trial that the only source he had for all the charged
transactions was Ramos-Hernandez.
With regard to the proposed May 19 sale, Rene
testified that he ordered sixteen ounces of cocaine from
Ramos-Hernandez, who indicated he could deliver it. However, a
lack of police resources caused Fortiz to cancel the sale and
reschedule for May 26. On May 26, Ramos-Hernandez was only able
to get four ounces from Chepe.
In a post-arrest interview, Ramos-Hernandez admitted
providing Rene with cocaine for each of the transactions.
Regarding the May 19 proposed deal, Ramos-Hernandez admitted
that he saw the sixteen ounces originally scheduled to be
delivered. However, Ramos-Hernandez testified at trial that he
did not provide Rene with any cocaine prior to May 26. He
claimed that he participated in the May 26 sale as a favor to
Rene. He also testified that Chepe dealt between fifteen and
twenty ounces of cocaine a week.
The court found Ramos-Hernandez guilty on all four
counts. The court explicitly found Ramos-Hernandez to not be
credible, based on both his substantive testimony and his
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demeanor. The court also found Ramos-Hernandez responsible for
18 ounces (or 510 grams) of cocaine for purposes of the
conspiracy count. The court came to this amount by counting the
one-ounce transactions on May 31 and April 9, and attributing a
total of sixteen ounces to Ramos-Hernandez for the aborted May
19 and completed May 26 transactions.
The presentence report (“PSR”) attributed
Ramos-Hernandez with 3.9123 kilograms of cocaine, based upon the
eighteen ounces found by the court as well as fifteen ounces a
week for the time period between the first and the last
transaction. The fifteen-ounce amounts were based on
co-conspirator Chepe’s sales, about which Ramos-Hernandez
admitted knowing. The PSR then calculated a Guidelines range of
151 to 188 months in prison.
At sentencing, Ramos-Hernandez, through counsel,
challenged the drug quantity and sought either a departure or a
variance sentence, admitting that “the formal application of the
guidelines are accurate.” The court held Ramos-Hernandez
responsible for the two one-ounce distributions, the sixteen
promised ounces, and four ounces from the final distribution.
Although twenty-two ounces calculates to 623 grams, the court
calculated the total to be 730 grams. With this new drug
amount, Ramos-Hernandez’s Guidelines range was 97 to 121 months.
Neither party objected.
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The court sentenced Ramos-Hernandez to 120 months in
prison. The court noted that, even if Ramos-Hernandez’s
Guidelines range had remained at 151-188 months, the court would
have imposed a variance sentence of 120 months, as the court
considered that sentence as “adequate . . . for deterrence and
punishment purposes” and proper comparatively to Rene’s 42-month
sentence. The court then stated that the sentence reflected the
nature, circumstances, and seriousness of the offense and
reflected the history and characteristics of Ramos-Hernandez.
Specifically, the court recognized Ramos-Hernandez’s argument
that his overstated criminal history merited a variance and
rejected it.
II.
Ramos-Hernandez contends that the evidence is
insufficient to support his conviction for the March 31 sale
based on Rene’s testimony that he initially told Fortiz that he
had a different supplier for that transaction. “A defendant
challenging the sufficiency of the evidence to support his
conviction bears a heavy burden.” United States v. Beidler,
110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks
omitted). We will uphold the jury’s verdict “if, viewing the
evidence in the light most favorable to the [G]overnment, it is
supported by substantial evidence.” United States v. Reid,
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523 F.3d 310, 317 (4th Cir. 2008). We do not weigh evidence or
review witness credibility. United States v. Wilson,
118 F.3d
228, 234 (4th Cir. 1997). Rather, it is the role of the
fact-finder to judge the credibility of witnesses, resolve
conflicts in testimony, and weigh the evidence. United
States v. Manbeck,
744 F.2d 360, 392 (4th Cir. 1984).
Ramos-Hernandez’s challenge to the sufficiency of the
evidence is essentially a credibility challenge. Although Rene
testified at trial that Ramos-Hernandez was his only supplier,
Ramos-Hernandez argues that Rene’s testimony is not worthy of
belief given his prior inconsistent statement. However, it was
the judge’s role to assess witness credibility and resolve
conflicts in testimony. As we will not review the credibility
of witnesses or re-weigh their testimony on appeal,
Ramos-Hernandez’s claim is without merit. 1
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Ramos-Hernandez also asserts that the evidence was
insufficient to show that the conspiracy involved more than 500
grams of cocaine, because the one ounce from the March 31 sale
should be removed from the calculation based upon Rene’s
inconsistent statements. However, because the court chose to
credit Rene’s in-court statements, the March 31 amount was
properly included, and this credibility determination is not
reviewable on appeal.
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III.
Ramos-Hernandez contends that the district court
arrived at a clearly erroneous drug amount. Specifically, as
discussed above, the drug amounts found by the court add up to
only 623 grams, rather than the 730 cited by the district court.
Further, Ramos-Hernandez challenges the court’s inclusion of
both the sixteen ounces from the aborted sale and the four
ounces from the replacement sale. However, Ramos-Hernandez
admits that, whether the correct amount was 510, 623, or 730,
the Guidelines calculation would be the same.
Ramos-Hernandez then contends that the district
court’s “significant procedural error” or “clear error” infected
the fairness of the rest of the sentencing hearing and caused
the district court to impose a higher sentence than it would
have had it realized the correct drug amount. According to
Ramos-Hernandez, the excess amount of cocaine discouraged the
district court from reducing the Guidelines range, imposing a
sentence at the bottom of the Guidelines range, or choosing to
impose a sentence below the Guidelines range. 2
2
The Government asserts that the district court was faced
with an applicable five-year (120-month) statutory minimum
sentence, effectively negating many of Ramos-Hernandez’s claims.
However, a five-year sentence correlates to only sixty months in
prison.
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We review a sentence imposed by a district court for
reasonableness, applying an abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 41 (2007). Reliance on
“clearly erroneous facts” will constitute “significant
procedural error.”
Id. at 51. Assuming Ramos-Hernandez
properly requested a variance sentence below his advisory
Guidelines range, his claim that the district court relied on
clearly erroneous facts is reviewed for harmless error.
Puckett v. United States,
129 S. Ct. 1423, 1432 (2009) (noting
that procedural errors at sentencing are “routinely subject to
harmlessness review”); see also United States v. Lynn,
592 F.3d
572, 576 (4th Cir. 2010) (holding that preserved claims are
reviewed for abuse of discretion, and if we find abuse, reversal
is required unless we conclude the error was harmless).
Procedural error is harmless if we can say with “fair assurance”
that the district court’s explicit consideration of the
appropriate facts would not have affected the sentence imposed.
See United States v. Boulware,
604 F.3d 832, 838 (4th Cir.
2010).
We find that the district court’s error in this case
was merely harmless. First, the district court did not commit
clear error by holding Ramos-Hernandez responsible for both the
sixteen ounces from the aborted May 19 sale and the four ounces
from the completed May 26 sale. There was testimony that the
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sixteen ounces were available for delivery on May 19, and no
testimony that the four ounces were somehow part of the original
sixteen ounces. It is not clear error to find one amount (510
grams) beyond a reasonable doubt and a larger amount by a
preponderance of the evidence. Thus, the proper amount, given
the district court’s findings, should have been 623 grams rather
than the erroneous 730 grams stated by the district court.
Nonetheless, the record does not find any support for
the conclusion that the 107-gram difference affected the
district court’s consideration of the appropriate sentence.
First, Ramos-Hernandez’s offense level applied to cocaine
amounts from 500 grams to 2000 grams (two kilograms). U.S.
Sentencing Guidelines Manual § 2D1.1(c)(7) (2009). Thus, both
623 and 730 fall into the low end of the offense level, and it
is difficult to discern why the district court would treat them
differently. Second, the district court was well aware of the
amount of drugs involved and the extent of Ramos-Hernandez’s
participation in the conspiracy, given that the court presided
over the bench trial. As such, the court was not likely to be
depending heavily on the actual gram count for determination of
the final sentence. Third, the court stated that 120 months was
the appropriate sentence regardless of the Guidelines range.
Fourth, when the court was listing the reasons for its chosen
sentence, including crafting an appropriate sentence compared to
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Ramos-Hernandez’s co-conspirator and affording adequate
deterrence, the court did not mention the 730 grams as an
aggravating factor necessitating the chosen sentence. Finally,
there is simply no evidence in the record that the district
court considered the 730 gram finding (as opposed to the 510
gram finding after trial) to be an especially compelling factor.
The court only mentioned the drug amount when determining the
offense level, which Ramos-Hernandez agrees was correctly
calculated.
Based on the foregoing, we find that the court’s
mathematical error was harmless. The record is clear that the
court considered 120 months to be the appropriate sentence,
regardless of the drug amount involved. Accordingly, we affirm
Ramos-Hernandez’s convictions and sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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