US v. Ruben Perez-Ruiz
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cr-00056-MOC-1 Copies to all parties and the district court/agency. [999578489].. [14-4565]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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,
to
Perez-Ruiz’s
counsel
submitted
a
brief
pursuant
Anders v. California, 386 U.S. 738 (1967), certifying that there
are
no
meritorious
issues.
grounds
for
appeal,
but
raising
several
Although advised of his right to do so, Perez-Ruiz has
not filed a supplemental brief.
a brief. *
The Government declined to file
After a thorough review of the record, we affirm.
I.
Perez-Ruiz
first
assistance of counsel.
asserts
that
290,
295
(4th
received
ineffective
Claims of ineffective assistance are not
usually cognizable on direct appeal.
F.3d
he
Cir.
1997).
United States v. King, 119
To
allow
for
adequate
development of the record, a defendant generally must bring his
ineffective
motion.
where
assistance
claims
in
King, 119 F.3d at 295.
the
record
a
U.S.C.
§
2255
(2012)
An exception exists, however,
conclusively
*
28
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.
2
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assistance.
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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.
indication
from
performance
the
record
that
below
an
falling
However, there is no
trial
counsel
objective
rendered
standard
reasonableness or that Perez-Ruiz was prejudiced.
of
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
Here,
States
counsel
v.
Allen,
does
not
prosecutorial
misconduct,
disclosed
evidence
no
of
491
F.3d
point
and
to
our
178,
any
3
(4th
specific
review
misconduct.
meritless.
191
of
Thus,
the
Cir.
2007).
instance
of
record
has
this
claim
is
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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.
a
challenge
to
the
district
court’s
In assessing
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.”
F.3d
850,
omitted).
852
(4th
Cir.
1997)
United States v. Harris, 128
(internal
quotation
marks
“[P]roof of constructive possession of the [firearm]
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is
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sufficient,
and
the
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Government
is
entitled
to
rely
on
circumstantial evidence to carry its burden.”
Manigan, 592 F.3d
at
to
629.
The
defendant
bears
the
burden
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)
firearm).
dangerous
based
Moreover,
weapon
is
on
co-conspirator’s
a
co-conspirator’s
foreseeable
when
possession
possession
“their
of
of
the
a
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:
participated
in
a
large
scale
drug
conspiracy,
Perez-Ruiz
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
conspiracy.
The
enhancement
district
based
court’s
on
his
imposition
role
of
in
a
the
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
participants.”
the
criminal
To
qualify
activity
for
6
such
involved
an
five
or
enhancement,
more
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
Perez-Ruiz
leadership
exercised
enhancement
control
over
to
Perez-Ruiz’s
his
wife
and
sentence.
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
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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
Perez-Ruiz
conspiracy,
offense.
was
a
the
However,
manager
district
because
as
or
supervisor
court
properly
discussed
in
his
found
above
criminal
him
to
be
ineligible.
VI.
In
accordance
with
Anders,
we
have
reviewed
record for meritorious issues and have found none.
we
affirm
requires
Perez-Ruiz’s
that
counsel
conviction
inform
and
the
Accordingly,
sentence.
Perez-Ruiz,
in
entire
This
writing,
court
of
the
right to petition the Supreme Court of the United States for
further
filed,
review.
but
If
counsel
Perez-Ruiz
believes
requests
that
such
that
a
a
petition
petition
would
be
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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