Filed: May 06, 2015
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4565 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN PEREZ-RUIZ, a/k/a Sarco, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00056-MOC-1) Submitted: February 27, 2015 Decided: May 6, 2015 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul F. Her
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4565 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RUBEN PEREZ-RUIZ, a/k/a Sarco, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Max O. Cogburn, Jr., District Judge. (3:13-cr-00056-MOC-1) Submitted: February 27, 2015 Decided: May 6, 2015 Before MOTZ, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Paul F. Herz..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4565
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUBEN PEREZ-RUIZ, a/k/a Sarco,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:13-cr-00056-MOC-1)
Submitted: February 27, 2015 Decided: May 6, 2015
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul F. Herzog, PAUL F. HERZOG, P.A., Fayetteville, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ruben Perez-Ruiz appeals from his conviction and 200-month
sentence imposed pursuant to his guilty plea to conspiracy to
possess with intent to distribute cocaine and cocaine base. On
appeal, Perez-Ruiz’s counsel submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no meritorious grounds for appeal, but raising several
issues. Although advised of his right to do so, Perez-Ruiz has
not filed a supplemental brief. The Government declined to file
a brief. * After a thorough review of the record, we affirm.
I.
Perez-Ruiz first asserts that he received ineffective
assistance of counsel. Claims of ineffective assistance are not
usually cognizable on direct appeal. United States v. King, 119
F.3d 290, 295 (4th Cir. 1997). To allow for adequate
development of the record, a defendant generally must bring his
ineffective assistance claims in a 28 U.S.C. § 2255 (2012)
motion.
King, 119 F.3d at 295. An exception exists, however,
where the record conclusively establishes ineffective
*
In addition, the Government has not filed a motion to
dismiss based upon Perez-Ruiz’s appellate waiver in his plea
agreement. We decline to raise the waiver sua sponte.
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assistance. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
Perez-Ruiz contends that counsel discussed the presentence
report with him in an untimely manner. However, there is no
indication from the record that trial counsel rendered
performance falling below an objective standard of
reasonableness or that Perez-Ruiz was prejudiced. The court
offered Perez-Ruiz extra time to discuss the PSR, and Perez-Ruiz
stated that he was prepared to go forward. Moreover, the record
does not disclose any meritorious objections that would have
been aided by extra consultation. Thus, because the record does
not conclusively establish ineffective assistance, this claim is
not cognizable in this appeal.
II.
Counsel next questions whether the Government engaged in
misconduct during Perez-Ruiz’s prosecution. To succeed on a
claim of prosecutorial misconduct, the defendant must prove that
the prosecution’s conduct was, in fact, improper, and that he
was deprived of a fair trial because of the prejudicial conduct.
United States v. Allen, 491 F.3d 178, 191 (4th Cir. 2007).
Here, counsel does not point to any specific instance of
prosecutorial misconduct, and our review of the record has
disclosed no evidence of misconduct. Thus, this claim is
meritless.
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III.
Perez-Ruiz argues that the district court erred in applying
the enhancement under U.S. Sentencing Guidelines Manual
§ 2D1.1(b)(1) (2013), for possession of a firearm because there
was insufficient evidence that he possessed the firearm found
buried near a “stash trailer” or that the firearm was connected
to the drug activity for which he was convicted. In assessing
a challenge to the district court’s application of the
Guidelines, we review the district court’s factual findings for
clear error and its legal conclusions de novo. United States v.
Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).
Section 2D1.1(b)(1) of the Guidelines directs a district
court to increase a defendant’s offense level by two levels
“[i]f a dangerous weapon (including a firearm) was possessed.”
The enhancement is proper when the weapon at issue “was
possessed in connection with drug activity that was part of the
same course of conduct or common scheme as the offense of
conviction,” United States v. Manigan, 592 F.3d 621, 628-29 (4th
Cir. 2010) (internal quotation marks omitted), even in the
absence of “proof of precisely concurrent acts, for example, gun
in hand while in the act of storing drugs, drugs in hand while
in the act of retrieving a gun.” United States v. Harris,
128
F.3d 850, 852 (4th Cir. 1997) (internal quotation marks
omitted). “[P]roof of constructive possession of the [firearm]
4
is sufficient, and the Government is entitled to rely on
circumstantial evidence to carry its burden.” Manigan, 592 F.3d
at 629. The defendant bears the burden to show that a
connection between his possession of a firearm and his narcotics
offense is “clearly improbable.”
Harris, 128 F.3d at 852-53.
We have further held that weapons possessed by a member of
a conspiracy are attributable to a co-conspirator when “under
the circumstances of the case, it was fair to say that it was
reasonably foreseeable to defendant that his co-participant was
in possession of a firearm.” United States v. Kimberlin, 18
F.3d 1156, 1159-60 (4th Cir. 1994) (internal quotation marks and
alteration omitted) (upholding application of enhancement under
USSG § 2D1.1(b) based on co-conspirator’s possession of the
firearm). Moreover, a co-conspirator’s possession of a
dangerous weapon is foreseeable when “their collaborative
criminal venture includes an exchange of controlled substances
for a large amount of cash.” United States v. Gomez-Jiminez,
750 F.3d 370, 381 (4th Cir.), cert. denied,
135 S. Ct. 305
(2014). Given Perez-Ruiz’s admitted conspiracy, his presence
and actions at the stash trailers and their curtilage, and the
large scope of the drug activity, it was fairly inferable that
the presence of the firearm was foreseeable. See
Kimberlin, 18
F.3d at 1160 (internal quotation marks omitted).
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Moreover, Perez-Ruiz has failed to present an argument that
the connection between the firearms and the drug conspiracy was
“clearly improbable,” and, on Anders review, “[t]here is nothing
in the record to suggest that the weapon[] w[as] unconnected to
the offense.” See Gomez-Jiminez, 750 F.3d at 382. In addition,
the record affirmatively supports the connection: Perez-Ruiz
participated in a large scale drug conspiracy, transporting
hundreds of thousands of dollars on more than one occasion; the
handgun was buried near a stash trailer where Perez-Ruiz was
seen repeatedly and where Perez-Ruiz retrieved items from the
wooded curtilage; and the stash trailers were also the site of
drug sales by Perez-Ruiz. As such, the court’s factual finding
that the weapon was connected to the drug trafficking conspiracy
was not error.
IV.
Perez-Ruiz next challenges the district court’s application
of a three-level enhancement based on his role in the
conspiracy. The district court’s imposition of a role
adjustment is a factual determination reviewed for clear error.
United States v. Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
A three-level enhancement under USSG § 3B1.1(b) is warranted if
“the defendant was a manager or supervisor (but not an organizer
or leader) and the criminal activity involved five or more
participants.” To qualify for such an enhancement, the
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defendant must have managed or supervised “one or more other
participants.” USSG § 3B1.1, cmt. n.2. The enhancement is
appropriate where the evidence demonstrates that the defendant
“controlled the activities of other participants” or “exercised
management responsibility.” United States v. Slade, 631 F.3d
185, 190 (4th Cir. 2011) (citing United States v. Bartley,
230
F.3d 667, 673-74 (4th Cir. 2000)). In determining whether an
enhancement under USSG § 3B1.1(b) is warranted, a court should
consider:
(1) the exercise of decision making authority, (2) the
nature of participation in the commission of the
offense, (3) the recruitment of accomplices, (4) the
claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or
organizing the offense, (6) the nature and scope of
the illegal activity, and (7) the degree of control
and authority exercised over others.
Kellam, 568 F.3d at 148 (quoting USSG § 3B1.1, cmt. n.4).
“Leadership over only one other participant is sufficient as
long as there is some control exercised.” United States v.
Rashwan,
328 F.3d 160, 166 (4th Cir. 2003).
We conclude that the district court did not clearly err by
applying the leadership enhancement to Perez-Ruiz’s sentence.
Perez-Ruiz exercised control over his wife and another,
directing them to assist him counting and wrapping the money.
In addition, his wife acted as counter-surveillance during money
drops. Perez-Ruiz also distributed cocaine for redistribution
7
and organized the logistics of the money-drops for a conspiracy
that dealt with a great deal of cocaine. Accordingly, this
claim is without merit.
V.
Perez-Ruiz next contends that the district court erred by
failing to give him a safety valve reduction in sentence. A
two-level reduction in offense level is applicable under USSG §
5C1.2 if the defendant meets the five criteria set out in 18
U.S.C. § 3553(f)(1)-(5) (2012), the fourth of which is that the
defendant is not a organizer, leader, manager, or supervisor of
others in the offense. However, because as discussed above
Perez-Ruiz was a manager or supervisor in his criminal
conspiracy, the district court properly found him to be
ineligible.
VI.
In accordance with Anders, we have reviewed the entire
record for meritorious issues and have found none. Accordingly,
we affirm Perez-Ruiz’s conviction and sentence. This court
requires that counsel inform Perez-Ruiz, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Perez-Ruiz requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
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a copy thereof was served on Perez-Ruiz. We dispense with oral
argument because the facts and legal contentions are adequately
expressed in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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