Filed: Jul. 06, 2009
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4480 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOISES RAMIREZ REYNA, a/k/a Moi, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00353-RJC-5) Submitted: June 11, 2009 Decided: July 6, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. D
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4480 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOISES RAMIREZ REYNA, a/k/a Moi, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:06-cr-00353-RJC-5) Submitted: June 11, 2009 Decided: July 6, 2009 Before WILKINSON, MICHAEL, and KING, Circuit Judges. Affirmed by unpublished per curiam opinion. De..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4480
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES RAMIREZ REYNA, a/k/a Moi,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J.
Conrad, Jr., Chief District Judge. (3:06-cr-00353-RJC-5)
Submitted: June 11, 2009 Decided: July 6, 2009
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Denzil H. Forrester, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Charlotte,
North Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moises Ramirez Reyna pled guilty, without a plea
agreement, to conspiracy to possess with intent to distribute
heroin, in violation of 21 U.S.C. § 846 (2006). Reyna was
sentenced to 135 months’ imprisonment. Finding no error, we
affirm.
Reyna’s counsel raises various challenges to the
district court’s application of the Sentencing Guidelines on
appeal. At sentencing, the district court is initially required
to calculate an appropriate advisory Guidelines range. Gall v.
United States, 552 U.S. 38, __,
128 S. Ct. 586, 596 (2007). The
district court “may accept any undisputed portion of the
presentence report as a finding of fact,” Fed. R. Crim. P.
32(i)(3)(A), and should evaluate the sentencing factors based on
the preponderance of the evidence, see United States v. Harvey,
532 F.3d 326, 337 (4th Cir. 2008). When reviewing the district
court’s application of the Sentencing Guidelines, we review
findings of fact for clear error and questions of law de novo.
United States v. Osborne,
514 F.3d 377, 387 (4th Cir.), cert.
denied,
128 S. Ct. 2525 (2008).
“No limitation shall be placed on the information
concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may
receive and consider for the purpose of imposing an appropriate
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sentence.” 18 U.S.C. § 3661 (2006); see also U.S. Sentencing
Guidelines Manual § 1B1.4 (2007). Moreover, the traditional
rules of evidence are not applicable to sentencing proceedings.
See Fed. R. Evid. 1101(d)(3). Thus, the district court may
consider any related and reliable evidence before it, including
hearsay, in establishing relevant conduct. United States v.
Bowman, 926 F.2d 380, 381 (4th Cir. 1991). With these
principles in mind, each of counsel’s arguments are addressed in
turn.
Counsel first contends that the district court failed
to comply with Rule 32 in resolving the Government’s objection
to the presentence report’s omission of a role enhancement.
“[F]or any disputed portion of the presentence report or other
controverted matter[, the district court must] rule on the
dispute or determine that a ruling is unnecessary either because
the matter will not affect sentencing, or because the court will
not consider the matter in sentencing[.]” Fed. R. Crim. P.
32(i)(3)(B).
As the proponent of the sentencing enhancement, the
burden was on the Government to establish by a preponderance of
the evidence that the enhancement should be applied. See United
States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004). The
Government therefore presented the testimony of Chris Batina, an
agent with the Drug Enforcement Administration, to establish
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that Reyna was a mid-level “dispatcher,” who was responsible for
breaking ounce quantities of heroin received from the “cell
head” into user amounts, or balloons.
Testimony showed that officers arrested Reyna and
several other members of the conspiracy at an apartment leased
by Reyna. The dispatchers, including Reyna, were found to be in
possession of cell phones that were used as “dispatch phones.”
Additionally, Reyna’s name was listed in drug ledgers, which the
cell heads used to keep track of drug amounts disbursed to the
dispatchers. One co-conspirator informed Batina that a street-
level dealer, or “runner,” named Victor Soria worked for Reyna.
Soria was arrested while leaving Reyna’s apartment and, when
searched, was in possession of several balloons of heroin.
In accordance with Rule 32(i)(3)(B), the court
considered the evidence and summarized its factual findings and
conclusions. The court determined that Reyna “was a manager of
the organization and had at least one person that he supervised
or managed, that being the runner, Soria.” J.A. 91. While
counsel asserts that the court erred by not specifically ruling
on other individuals the Government alleged were supervised by
Reyna, this was unnecessary as the Government corrected its
assertions made in the objection and clarified that Soria was
Reyna’s runner.
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Counsel also contends that the evidence presented at
sentencing was unreliable. Yet, the materials in the joint
appendix do not support counsel’s claim. As summarized above,
both testimony and physical evidence established that Reyna was
a mid-level manager responsible for directing another individual
in the conspiracy.
Next, counsel argues that the district court erred in
considering evidence that was not part of the presentence
report. Counsel concludes that the presentence report “carries
with it the same cloak of impartiality as a jury verdict”
because, like a jury verdict, the report is an “unbiased
conclusion formed after gleaning from collected information.”
Br. of Appellant 18. We conclude, however, that the district
court did not err in considering the testimony of the federal
agent at sentencing because a court may permit either party
under Rule 32(i)(2) of the Federal Rules of Criminal Procedure
to present evidence, including witness testimony, on an
objection to the presentence report.
Finally, counsel contends that the district court’s
consideration of hearsay evidence at sentencing violated Reyna’s
constitutional right of confrontation. In Crawford v.
Washington, 541 U.S. 36 (2004), the Supreme Court held that the
Confrontation Clause prohibits the admission at trial of
testimonial statements that are not subject to cross-
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examination. Id. at 50-51. However, no circuit court to have
considered the effect of Crawford has concluded that the rule
announced in Crawford applies at sentencing. See, e.g., United
States v. Bras, 483 F.3d 103, 109 (D.C. Cir. 2007) (determining
Crawford did not alter general rule that hearsay evidence
admitted at sentencing does not violate defendant’s
confrontation rights); see also United States v. Brown,
430 F.3d
942, 943-44 (8th Cir. 2005) (noting courts have held that
Crawford did not alter general rule of admissibility of hearsay
evidence at sentencing).
Accordingly, we affirm the judgment of the district
court. 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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