US v. Jose Ramos-Hernandez

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00549-JCC-1. Copies to all parties and the district court/agency. [998589147] [10-4912]

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Document: 33

Date Filed: 05/13/2011

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jose
convictions

Marcial

for

various

120-month sentence.

Ramos-Hernandez
cocaine

appeals

offenses

and

from

his

his

resulting

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,

attempted to sell cocaine to Fortiz on May 19.

Rene

At the May 26

sale, Rene and Ramos-Hernandez were arrested.
Rene

pled

transactions

and

stated

he

that

guilty

to

testified

at

obtained

offenses

arising

from

these

Ramos-Hernandez’s

2

He

cocaine

the

trial.
Fortiz

from

sold

to

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Ramos-Hernandez.

Page: 3 of 10

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
testified

regard

that

he

to

the

ordered

proposed

sixteen

May

ounces

19
of

sale,

Rene

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

Regarding

the

that

he

saw

delivered.

with
May

the

cocaine

19

for

proposed

sixteen

each

deal,

ounces

of

the

transactions.

Ramos-Hernandez

originally

admitted

scheduled

to

be

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
counts.
credible,

court

found

Ramos-Hernandez

guilty

on

all

four

The court explicitly found Ramos-Hernandez to not be
based

on

both

his

substantive
3

testimony

and

his

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demeanor.

The court also found Ramos-Hernandez responsible for

18

(or

ounces

510

conspiracy count.

grams)

of

cocaine

for

purposes

of

the

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

transaction.

period

The

co-conspirator

fifteen-ounce

Chepe’s

admitted knowing.

between

sales,

the

first

amounts

about

and

were

which

the
based

last
on

Ramos-Hernandez

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
responsible

are
for

accurate.”
the

two

The

court

one-ounce

held

Ramos-Hernandez

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.
4

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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.
nature,
reflected

The court then stated that the sentence reflected the
circumstances,
the

Specifically,
that

his

history
the

and
and

court

overstated

seriousness

of

characteristics

recognized

criminal

the

of

offense

Ramos-Hernandez.

Ramos-Hernandez’s

history

and

merited

a

argument

variance

and

evidence

is

rejected it.

II.
Ramos-Hernandez

contends

that

the

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.
challenging

the

sufficiency

of

the

conviction bears a heavy burden.”

evidence

to

“A defendant
support

his

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.”
5

United

States

v.

Reid,

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Date Filed: 05/13/2011

523 F.3d 310, 317 (4th Cir. 2008).
review witness credibility.
228,

234

(4th

fact-finder
conflicts

to
in

Cir.

the

testimony,

We do not weigh evidence or

United States v. Wilson, 118 F.3d

1997).

judge

Page: 6 of 10

Rather,

it

credibility
and

weigh

of
the

is

the

role

witnesses,
evidence.

of

the

resolve
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.
the

judge’s

role

to

assess

conflicts in testimony.
of

witnesses

or

witness

However, it was

credibility

and

resolve

As we will not review the credibility

re-weigh

their

testimony

on

appeal,

Ramos-Hernandez’s claim is without merit. 1

1

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.

6

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III.
Ramos-Hernandez

contends

that

the

arrived at a clearly erroneous drug amount.

district

court

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,
both

the

ounces

Ramos-Hernandez
sixteen

from

the

ounces

challenges
from

replacement

the
sale.

the

court’s

aborted

sale

However,

inclusion
and

the

of

four

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.

7

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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

“significant

erroneous

procedural
properly

facts”

requested

a

constitute

Id.

error.”

will
51.

Assuming

at

variance

sentence

Ramos-Hernandez

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.
8

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.
grams)

beyond

It is not clear error to find one amount (510
a

reasonable

doubt

preponderance of the evidence.

and

a

larger

amount

by

a

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

district
First,

court’s

that

the

107-gram

consideration

Ramos-Hernandez’s

of

offense

difference
the

level

affected

appropriate
applied

sentence.

to

amounts from 500 grams to 2000 grams (two kilograms).
Sentencing Guidelines Manual § 2D1.1(c)(7) (2009).

the

cocaine
U.S.

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.
the

appropriate

Third, the court stated that 120 months was

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
deterrence,

the

co-conspirator
court

did

not

Page: 10 of 10

and

affording

mention

the

730

adequate

grams

aggravating factor necessitating the chosen sentence.

as

an

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,

mathematical error was harmless.
court

considered

120

months

to

we

find

be

the

appropriate

adequately

because

presented

in

the
the

court’s

facts

and

materials

sentence,

Accordingly, we affirm

Ramos-Hernandez’s convictions and sentence.
argument

the

The record is clear that the

regardless of the drug amount involved.

oral

that

We dispense with

legal
before

contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

10