USA v. Brown



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USA v. Brown Doc. 0 Case: 08-41058 Document: 00511191836 Page: 1 Date Filed: 08/02/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 2, 2010 N o . 08-41058 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. C H E R Y L KAY BROWN, also known as Cheryl Goodpaster Brown; THOMAS P A U L RAMIREZ, Defendants - Appellants A p p e a l from the United States District Court fo r the Eastern District of Texas U S D C No. 4:07-CR-77 B e fo r e KING, HIGGINBOTHAM, and GARZA, Circuit Judges. P E R CURIAM:* T h o m a s Paul Ramirez and Cheryl Kay Brown were jointly tried and c o n v ic t e d , by a jury, for conspiring to possess, steal, or receive stolen mail matter in violation of 18 U.S.C. § 371, and were each sentenced to five years' im p r is o n m e n t . On appeal, Ramirez challenges his conviction and sentence, and B r o w n challenges her conviction. For the following reasons, we AFFIRM the ju d g m e n t of conviction and sentence for each defendant. Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 08-41058 Document: 00511191836 Page: 2 Date Filed: 08/02/2010 No. 08-41058 I . BACKGROUND R a m ir e z and Brown, along with fourteen coconspirators, were charged in a ten-count indictment, which alleged that they were participants in a c o n s p ir a c y to steal mail. The Government alleged that the coconspirators would u s e stolen financial and personal information from the mail to purchase m e r c h a n d is e and gift cards, which they would later trade for drugs, typically m e t h a m p h e t a m in e , or cash. As one coconspirator succinctly summarized at t r ia l, the coconspirators were united by "mail, meth, and theft." Ramirez and B r o w n were each charged with one count of conspiracy to possess, steal, or r e c e iv e stolen mail matter in violation of 18 U.S.C. § 371, and Brown was further c h a r g e d with three counts of possession, theft, or receipt of stolen mail matter in violation of 18 U.S.C. § 1708. Both Ramirez and Brown pleaded not guilty to t h e s e charges and proceeded to trial. D u r in g the joint trial, several coconspirators testified regarding the c o n s p i r a c y 's objectives and operation. Regarding Ramirez, the testimony in d ic a te d that he had stolen mail, transported stolen mail, sorted through stolen m a il, purchased items using credit cards stolen from the mail, and passed fr a u d u le n t checks using information and documents obtained from the mail. Concerning Brown, the Government presented evidence showing that, on the n ig h t of her arrest, she and three other coconspirators had been stealing mail a n d were driving a pickup truck containing two trash bags of mail. Further, the G o v e r n m e n t offered testimony that Brown had sorted stolen mail both at her h o u s e and at a game room that she managed. A t both the close of the Government's case and the close of all evidence, R a m ir e z and Brown moved for judgments of acquittal, which the district court d e n ie d . The case was submitted to the jury, which found Ramirez and Brown g u ilt y on the conspiracy charge, but found Brown not guilty on the possession of s t o le n mail charges. A Presentence Investigation Report (PSR) was prepared for 2 Case: 08-41058 Document: 00511191836 Page: 3 Date Filed: 08/02/2010 No. 08-41058 e a c h defendant, calculating a 151­188 month United States Sentencing G u id e lin e s (the "Guidelines") range for Ramirez and a 78­97 month Guidelines r a n g e for Brown. However, because the statutory maximum term of im p r is o n m e n t for the defendants' convictions was five years, the recommended G u id e lin e s ranges were reduced to 60 months. The district court sentenced each d e fe n d a n t to 60 months' imprisonment and three years of supervised release. Each defendant timely appealed. II. DISCUSSION A . Thomas Ramirez O n appeal, Ramirez argues that (1) the district court erred in denying his m o t io n to suppress certain statements he made to investigators, (2) the evidence p r e s e n t e d at trial was insufficient to support his conviction, and (3) the district c o u r t applied the wrong burden of proof at sentencing. We address each in turn. 1 . Whether the district court erred in denying Ramirez's motion to suppress. W h il e Ramirez was being transported to court for his initial hearing, he in it ia te d a conversation with postal inspectors, waived his Miranda rights, and m a d e a number of self-incriminating statements. Before trial, Ramirez moved t o suppress these statements, arguing that his waiver of Miranda rights had not b e e n "voluntary" because he was "not cogent" at the time due to back pain and m e d ic a t io n for that pain. At the suppression hearing, Ramirez's theory changed s o m e w h a t : specifically, it was the lack of pain medication, and the resulting p a in , that rendered his waiver involuntary. Following the suppression hearing, t h e district court, adopting the recommendation of the magistrate judge, denied R a m ir e z 's motion, finding that Ramirez made a knowing and voluntary waiver o f his Miranda rights and that he was not coerced in waiving those rights. O n appeal, Ramirez argues that, at the time he made the statements, he w a s handcuffed in an uncomfortable position, the inspectors knew that he was in pain, and the inspectors knew that an attorney would shortly be present at 3 Case: 08-41058 Document: 00511191836 Page: 4 Date Filed: 08/02/2010 No. 08-41058 h is initial hearing to assist him. As such, Ramirez urges that his waiver of M ir a n d a rights was involuntary and that the district court erred in failing to s u p p r e s s his statements. We disagree. " [A ] district court's determination regarding the validity of a defendant's w a iv e r of his Miranda rights is a question of law reviewed de novo, but this court a ccep ts the factual conclusions underlying the district court's legal d e t e r m in a t io n unless they are clearly erroneous." United States v. Cardenas, 4 1 0 F.3d 287, 292 (5th Cir. 2005) (quotation marks omitted). The inquiry whether a valid waiver has occurred has two distinct d im e n s io n s . First, the relinquishment of the right must have been v o lu n ta r y in the sense that it was the product of a free and d e lib e r a t e choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of b o th the nature of the right being abandoned and the consequences o f the decision to abandon it. I d . at 293 (quotation marks omitted). "The voluntariness determination is made o n a case-by-case basis and is viewed under the totality of the circumstances s u r r o u n d in g the interrogation." Id. The record here provides ample support for the district court's conclusion t h a t Ramirez voluntarily waived his Miranda rights without coercion and with k n o w le d g e of his rights. Inspectors transporting Ramirez testified that he was c o g n iz a n t of, and understood, what the agents were saying; was not babbling; in it ia te d conversation with the agents; and specifically understood his Miranda r ig h t s . Further, the minutes of Ramirez's initial appearance indicate that he w a s "physically and mentally able, ready [to proceed]"; he testified under oath, a d m it t in g that he understood what was going on; and his counsel thought that " h e appear[ed] to understand what's going on and . . . that he [wa]s competent." Moreover, Ramirez does not point to any evidence that investigators in any way c o e r c e d his waiver of Miranda rights. Instead, the record indicates that, though R a m ir e z told the inspectors he was in some pain, the inspectors did nothing to 4 Case: 08-41058 Document: 00511191836 Page: 5 Date Filed: 08/02/2010 No. 08-41058 c a u s e or aggravate this pain; standard transportation and custody procedures w e r e followed; and Ramirez first initiated discussion with the inspectors c o n c e r n in g his activities. See id. at 295 (indicating that handcuffing suspects is s t a n d a r d police procedure which is not coercive). In sum, given the c ir c u m s t a n c e s here, we find no error in the district court's conclusion that R a m ir e z 's waiver of his Miranda rights was knowing, voluntary, and uncoerced. See id. at 297. The district court properly denied Ramirez's motion to suppress. 2. Whether sufficient evidence supports Ramirez's conviction. R a m ir e z next argues that the only evidence presented linking him to the c o n s p ir a c y was the testimony of his coconspirators and that this testimony "was s o consistently unreliable" so as to be insufficient to support his conviction. We a r e unpersuaded. B e c a u s e Ramirez moved for acquittal, we ask "whether the evidence is s u ffic ie n t by viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict and determining whether a rational ju r y could have found the essential elements of the offenses beyond a reasonable d o u b t ." United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006) (quotation m a r k s omitted). "It is not necessary that the evidence exclude every rational h y p o t h e s is of innocence or be wholly inconsistent with every conclusion except g u ilt , provided a reasonable trier of fact could find the evidence establishes guilt b e y o n d a reasonable doubt." Id. (quotation marks omitted). R a m i r e z 's arguments challenging the credibility and weight of the c o c o n s p ir a t o r s ' testimony are unpersuasive. The sufficiency of the evidence s t a n d a r d gives "full play to the responsibility of the trier of fact fairly to resolve c o n flic ts in the testimony, to weigh the evidence, and to draw reasonable in fe r e n c e s from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307, 3 1 9 (1979); accord United States v. Casillas, 20 F.3d 600, 602 (5th Cir. 1994) (" T h e jury is solely responsible for determining the weight and credibility of the 5 Case: 08-41058 Document: 00511191836 Page: 6 Date Filed: 08/02/2010 No. 08-41058 e v id e n c e ; this court will not substitute its own determination of credibility for t h a t of the jury."). Further, Ramirez's argument that little direct evidence im p lic a t e s his involvement in the conspiracy also fails to persuade. See United S ta te s v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998) ("Circumstantial e v id e n c e may establish the existence of a conspiracy, as well as an individual's v o lu n t a r y participation in it, and circumstances altogether inconclusive, if s e p a r a t e ly considered, may, by their number and joint operation . . . be sufficient t o constitute conclusive proof." (quotation marks and alteration omitted)). Here, a s Ramirez admits, the Government did present evidence that linked him to the c o n s p ir a c y . Sufficient evidence supports the jury's conviction, and we find no e r r o r on this issue. 3. Whether the district court erred at sentencing. F in a lly , Ramirez argues that the district court "should have used a higher b u r d e n of proof at sentencing . . . because the weak evidence of intended loss r e s u lt e d in a drastically disproportionate effect on his sentence." Specifically, R a m ir e z argues that his offense level should not have been increased because o n l y a fraction of the actual and intended loss to victims were attributable to h im . Again, we are unpersuaded. " [A ] district court's interpretation or application of the . . . Guidelines is r e v ie w e d de novo, and its factual findings are reviewed for clear error. There is n o clear error if the district court's finding is plausible in light of the record as a whole." United States v. Cisneros­Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (a lt e r a t io n omitted). If the sentencing decision is procedurally sound, we c o n s id e r the substantive reasonableness of the sentence imposed under an a b u s e -o f-d is c r e t io n standard. Id. Though we have recognized that a higher standard of proof may be n e c e s s a r y "when a finding of a particular fact relevant to sentencing d r a m a tic a lly alters the sentencing options of the court to the disadvantage of the 6 Case: 08-41058 Document: 00511191836 Page: 7 Date Filed: 08/02/2010 No. 08-41058 d e fe n d a n t , United States v. Mergerson, 4 F.3d 337, 343 (5th Cir. 1993), we have n e v e r actually adopted this "tail wags the dog" doctrine, see id. at 344; accord U n ite d States v. Harper, 448 F.3d 732, 734 n.1 (5th Cir. 2006). But even if we w e r e to assume, arguendo, that the doctrine exists in this circuit, we would not a p p ly it here. Even without any enhancements for intended or actual loss, R a m ir e z still faced a sentence of two to three years; Ramirez eventually was s e n te n c e d to the statutory maximum of five years' imprisonment. Thus, though t h e intended loss calculation led to a much larger Guidelines range, the s t a t u t o r y maximum term of imprisonment capped the sentence that Ramirez fa c e d . As such, we cannot say that the increase from a sentence of two to three y e a r s to a five year sentence was so dramatic as to require a higher standard of p r o o f. See Mergerson, 4 F.3d at 344 (no higher standard of proof required for in c r e a s e in recommended sentence from 30 years to life to mandatory life im p r is o n m e n t ); United States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994) (no h ig h e r standard of proof required for increase in recommended sentence from 6 3 ­ 7 8 months' imprisonment to 235 months' imprisonment). Further, we note that the PSR explained, in detail, the basis for both its in t e n d e d and actual loss calculations. Given the nature of the conspiracy here a n d the detail of the PSR, we cannot say that the enhancements based on the PSR's loss calculations were erroneous. See United States v. Harris, 597 F.3d 2 4 2 , 259 (5th Cir. 2010) ("[A] sentencing court may infer intent to inflict a loss e q u a l to the face value of property [including credit card limits] based on the fact t h a t the defendant recklessly jeopardized that property during the commission o f his crime. That a defendant recklessly jeopardized property that he obtained fr a u d u le n t ly may be reasonably supported by a finding that he transferred it to a third party whom he did not control." (citation omitted)). In sum, we find no e r r o r in Ramirez's sentence. B. Cheryl Kay Brown 7 Case: 08-41058 Document: 00511191836 Page: 8 Date Filed: 08/02/2010 No. 08-41058 B r o w n 's sole issue on appeal is whether the district court erred in allowing t e s t im o n y about her and her coconspirators' drug use. Specifically, Brown a r g u e s that the testimony concerning drug use was "extrinsic" to the stolen mail c o n s p ir a c y because the mail theft could have occurred without drug use. As s u c h , she urges that this testimony improperly characterized her as a "drug d e a le r and a person who traded stolen property for drugs" and was thus unduly p r e ju d ic ia l. We find no error on this issue. "To determine whether `other acts' evidence was erroneously admitted, we m u s t first decide whether the evidence was intrinsic or extrinsic." United States v . Rice, 607 F.3d 133, 141 (5th Cir. 2010). "Other act evidence is intrinsic when t h e evidence of the other act and the evidence of the crime charged are in e x t r ic a b ly intertwined or both acts are part of a single criminal episode or the o t h e r acts were necessary preliminaries to the crime charged." Id. (quotation m a r k s omitted). "Intrinsic evidence is admissible to complete the story of the c r im e by proving the immediate context of events in time and place, and to e v a l u a t e all of the circumstances under which the defendant acted." Id. "Intrinsic evidence does not implicate [Federal Rule of Evidence] 404(b), and c o n s id e r a t io n of its admissibility pursuant to that rule is unnecessary." Id. (c it a t io n , alterations, and quotation marks omitted). H e r e , the Government's presentation of drug use evidence helped "paint t h e picture," id., of the relationship between the coconspirators and the o b je c t iv e s of the conspiracy by showing that the conspiracy's impetus was the d e s ir e to obtain funds to purchase drugs. See, e.g., id. (presentation of previous r o b b e r y attempts helped the Government to show the conspiracy's objectives and m o d e of operations); United States v. Royal, 972 F.2d 643, 647­48 (5th Cir. 1992) (e v id e n c e of prior drug convictions not extrinsic in a drug conspiracy conviction b e c a u s e "it allowed the jury to understand the nature of the relationship b e tw e e n the [coconspirators] and evaluate whether it was likely that the 8 Case: 08-41058 Document: 00511191836 Page: 9 Date Filed: 08/02/2010 No. 08-41058 [d ]e fe n d a n t [s ] would have conspired"). As such, the drug use evidence presented h e r e was "intrinsic," and we discern no error on this issue. I I I . CONCLUSION For the foregoing reasons, we AFFIRM the judgment of conviction and s e n te n c e for each defendant. A F F IR M E D . 9

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