USA v. Salomon Ruiz

Filing

PUBLISHED OPINION FILED. [09-40520 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 10/19/2010 for Appellant Salomon Ruiz [09-40520]

USA v. Salomon Ruiz

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Case: 09-40520

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Date Filed: 09/28/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 28, 2010 N o . 09-40520 S u m m a r y Calendar Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. S A L O M O N RUIZ, D e fe n d a n t - Appellant

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e KING, DEMOSS, and DENNIS, Circuit Judges. P E R CURIAM: S a lo m o n Ruiz challenges the sentence he received after he pled guilty to b r ib e r y of a public official in violation of 18 U.S.C. §§ 2 and 201. He argues that t h e district court erred in applying the cross-reference provision in United States S e n te n c in g Guidelines (U.S.S.G.) § 2C1.1(c) to determine his base offense level, in c r e a s in g his offense level for carrying a weapon during the commission of his o ffe n s e , and denying him a two-level decrease in his offense level under the " s a fe t y -v a lv e " provision. Ruiz also argues that his sentence was substantively u n r e a s o n a b le . For the following reasons, we affirm.

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No. 09-40520

I. S a lo m o n Ruiz (Ruiz), a Customs and Border Protection (CBP) agent, was s u s p e c t e d of assisting drug-trafficking organizations in Starr County, Texas. Between December 2007 and April 2008, the Federal Bureau of Investigation (F B I ) received information from CBP and the Drug Enforcement Administration d e t a ilin g Ruiz's suspicious behavior. For instance, on April 29, 2008, Ruiz was h e a r d alerting drug trafficking associates via cell phones that a law enforcement o p e r a t io n was underway. Ruiz had been dispatched to assist in executing a s e a r c h warrant in Roma, Texas, but when the warrant team arrived at the a d d r e s s , it appeared that the occupants had just departed. On May 30, 2008, a cooperating witness (the CW) agreed to pose as a drug t r a ffic k e r with high-level ties to members of the Gulf Cartel, a drug-trafficking o r g a n iz a t io n . The CW met with Raul Ruiz, Ruiz's brother who was involved in d r u g trafficking. Raul Ruiz later introduced the CW to Ruiz. At the time of the m e e t in g , Ruiz was on duty and was wearing his CBP uniform and duty sidearm. Ruiz informed the CW that he was currently assisting several other drugt r a ffic k in g organizations in Starr County and could assist the CW's operation by e n s u r in g there was no CBP presence near illegal drug crossing locations, m o n it o r in g law enforcement radio traffic, and briefly escorting drug-laden v e h ic le s . Ruiz told the CW that he required a $10,000 retainer fee and that he c h a r g e d $4,000 to escort a car and $6,000 to escort a van. The CW paid Ruiz $4,000 for his future assistance and told Ruiz that he p la n n e d on moving about 25 or 30 kilograms of cocaine. Ruiz told the CW that h e would assist him by providing the locations of sensors used by immigration a u t h o r it ie s , maintaining surveillance, and keeping other law enforcement o ffic e r s away from the area while the drugs were being smuggled.

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No. 09-40520 A fter several more meetings and conversations to coordinate the operation, R u iz assisted the CW in smuggling 25 kilograms of cocaine through Starr C o u n ty . This was a controlled operation coordinated by FBI agents. Ruiz, who w a s on duty and wearing his duty sidearm, assisted the CW by purposely a c t iv a t in g a CBP sensor. Ruiz also provided counter-surveillance information t o the CW for safe passage to the highway. Ruiz received another $4,000 for his a s s is t a n c e and reminded the CW that he was still owed $6,000 for the retainer fe e , which the CW later paid. R u iz also introduced the CW to Leonel Morales, Ruiz's cousin, who agreed t o provide counter surveillance for drug smuggling in another county and who la t e r assisted the CW in transporting 20 kilograms of cocaine. Ruiz also agreed t o assist the CW with a future drug smuggling operation. Ruiz was charged in a four-count indictment with bribery of a public o ffic ia l (count one) and committing various controlled substance offenses. He p le d guilty to count one, pursuant to a written plea agreement. Probation c o m p le t e d a Presentence Investigation Report (PSR). The PSR applied U.S.S.G. § 2C1.1(c), the cross-reference provision within the bribery guideline. Under § 2 C 1 .1 (c ), Ruiz's base offense level accounting for the quantity of marijuana and c o c a in e attributable to his relevant conduct was 34. His offense level was

in c r e a s e d by two levels under § 2D1.1(b)(1) because he possessed a firearm while c o m m it t in g the offense and increased by another two levels under § 3B1.3 b e c a u s e he abused his position of trust as a CBP agent. After a two level r e d u c t io n for acceptance of responsibility, Ruiz's total offense level was 36. Ruiz filed objections to the PSR. He argued, among other things, that: the c r o s s -r e fe r e n c in g provision did not apply because he could not have entered into a n illegal conspiracy with the Government's undercover agent, drivers, and p a s s e n g e r s ; the firearm enhancement did not apply because he possessed his d u t y sidearm only as an extension of his uniform and did not use, brandish, or 3

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No. 09-40520 r e m o v e it during the commission of the offense; and denial of the guidelines' " s a fe t y valve" provision based on his possession of a firearm was error. At sentencing, the district court granted the Government's motion for an a d d it io n a l one-level reduction of Ruiz's offense level for acceptance of r e s p o n s ib ilit y . Ruiz again argued his objections to the application of the crossr e fe r e n c in g provision, the firearm enhancement, and the abuse of trust e n h a n c e m e n t . The district court overruled each objection. Ruiz also requested a downward departure on the basis that the recommended guidelines range of im p r is o n m e n t overstated the severity of his offense. The district court adopted t h e factual findings in the PSR, lowered Ruiz's offense level to 35 as a result of t h e additional one-point reduction for acceptance of responsibility, and noted t h a t the guidelines range of imprisonment was 168 to 180 months of im p r is o n m e n t because the statutory maximum was 15 years. See 18 U.S.C. § 201(b)(2). The district court considered the 18 U.S.C. § 3553(a) factors and c o n c lu d e d that a guidelines sentence satisfied those factors. The district court s e n te n c e d Ruiz to 168 months of imprisonment and three years of supervised r e le a s e . Ruiz timely appealed. II. B e c a u s e Ruiz was sentenced after the Supreme Court's decision in United S ta te s v. Booker, 543 U.S. 220 (2005), this court reviews his sentence for r e a s o n a b le n e s s in light of the factors set forth in § 3553(a). See United States v. M a r e s , 402 F.3d 511, 519 (5th Cir. 2005). A district court must consider all facts r e le v a n t to sentencing in the same manner as before Booker in determining the a d v is o r y guidelines range. United States v. Alonzo, 435 F.3d 551, 553 (5th Cir. 2 0 0 6 ). This court must determine whether the sentence imposed is procedurally s o u n d and substantively reasonable. Gall v. United States, 552 U.S. 38, 48-51 (2 0 0 7 ).

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No. 09-40520 A sentence is procedurally sound if "the district court committed no s ig n ific a n t procedural error, such as failing to calculate (or improperly c a lc u la t in g ) the Guidelines range, treating the Guidelines as mandatory, failing t o consider the § 3553(a) factors, selecting a sentence based on clearly erroneous fa c t s , or failing to adequately explain the chosen sentence--including an e x p la n a t io n for any deviation from the Guidelines range." Gall, 552 U.S. at 51. This court reviews a district court's application of the guidelines de novo and its fa c t u a l findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 7 5 1 , 764 (5th Cir. 2008). A presumption of reasonableness applies to sentences that fall within the g u id e lin e s . Rita v. United States, 551 U.S. 338, 347 (2007); United States v. G u tie r r e z -H e r n a n d e z , 581 F.3d 251, 254 (5th Cir. 2009). Any challenge to that p r e s u m p t io n is foreclosed by United States v. Mondragon-Santiago, 564 F.3d 3 5 7 , 367 & n.7 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). A. R u iz argues that the district court procedurally erred when it applied the c r o s s -r e fe r e n c e provision in § 2C1.1(c) to determine his base offense level. He a v e r s that only subsections (a) and (b) should have been used to calculate his s e n te n ce . U.S.S.G. § 2C1.1(a) provides the base offense level for the offense of r e c e iv in g a bribe. Because Ruiz was a public official, his base offense level under s u b s e c t io n (a) was 14. Subsection (b) provides a list of enhancements for specific o ffe n s e characteristics. Under subsection (b), Ruiz received a two-level

e n h a n c e m e n t because the offense involved more than one bribe, a four-level e n h a n c e m e n t because the value of the payment exceeded $5,000, and another fo u r -le v e l enhancement because Ruiz was a public official in a sensitive position. His total adjusted offense level under subsections (a) and (b) was 24.

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No. 09-40520 S u b s e c t io n (c)(1), however, provides an alternative base offense level if the o ffe n s e was "committed for the purpose of facilitating the commission of another c r im in a l offense." If so, the court is to "apply the offense guideline applicable to a conspiracy to commit that other offense, if the resulting offense level is greater t h a n that determined" under subsections (a) and (b). § 2C1.1(c). Here, the o ffe n s e of receiving a bribe was committed for the purpose of facilitating the c o m m is s io n of the offense of conspiracy to possess with intent to distribute 5 or m o r e kilograms of cocaine. For that offense, Ruiz would receive a base offense le v e l of 34 for the amount of drugs attributable to him, a two-level enhancement f o r possessing a firearm, and another two-level enhancement for abusing a p o s it io n of trust, for a total adjusted offense level of 38. 2 D 1 .1 (a ), 2D1.1(b)(1), 3B1.3. R u iz argues that he could not have conspired with the cooperating witness a s a matter of law and therefore the court should not have applied the cross r e fe r e n c e in subsection (c)(1). The plain language in subsection (c)(1), however, r e q u ir e s that the bribery offense be committed for the "purpose of facilitating" a n o t h e r offense and does not require the consummation of the offense the d e fe n d a n t sought to commit. The offense Ruiz sought to commit was conspiracy t o possess with intent to distribute cocaine. Subsection (c)(1) applies. S e c t io n 2C1.1's commentary validates this conclusion. It provides that "if a bribe was given to a law enforcement officer to allow the smuggling of a q u a n t it y of cocaine, the guideline for conspiracy to import cocaine would be a p p lie d if it resulted in a greater offense level." § 2C1.1 cmt. background. Because Ruiz took bribes to facilitate the smuggling of cocaine, his offense falls s q u a r e ly under the scenario the commentary describes. The district court See §§ 2C1.1(c),

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No. 09-40520 c o r r e c t ly cross referenced the drug guidelines to determine Ruiz's total offense le v e l.1 B. R u iz also argues that, even if the district court correctly applied the crossr e fe r e n c e provision, the district court erred when it enhanced his offense level b y two under § 2D1.1(b)(1) for possessing a weapon in connection with the o ffe n s e . Ruiz cites commentary to the guideline that states that the adjustment d o e s not apply if it "is clearly improbable that the weapon was connected with t h e offense." See § 2D1.1 cmt. 3. Ruiz notes that the PSR states that he wore his d u t y sidearm when he met with the CW and agreed to provide ancillary support fo r the narcotics for a fee, but he argues that there is no evidence that he or the C W possessed a firearm when the CW actually transported the cocaine. He adds t h a t there is likewise no evidence that he knew or should have known that the C W or any co-conspirator possessed a firearm. Finally, he argues that, even if h e wore his sidearm as part of his uniform when the drug transport occurred, t h e r e is no evidence that the possession of the weapon was in connection with t h e offense. The district court's determination that § 2D1.1(b)(1) applies is a factual fin d in g reviewed for clear error. United States v. Jacquinot, 258 F.3d 423, 430 (5 t h Cir. 2001). A factual finding is not clearly erroneous if it is plausible, c o n s id e r in g the record as a whole. United States v. Scher, 601 F.3d 408, 413 (5th C ir . 2010). The district court may rely on the information in a PSR when, as

The conclusion this court reaches today that subsection (c)(1)'s cross reference may apply even if the defendant committed the bribery offense for the purpose of conspiring with a government agent to possess an illegal substance is consistent with this court's two recent unpublished opinions concerning the applicability of the subsection. See United States v. Williams, 332 F. App'x 937, 940 (5th Cir. 2009); United States v. Carr, 303 F. App'x 166, 16970 (5th Cir. 2008).

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No. 09-40520 h e r e , the defendant did not rebut any of the findings contained therein. See U n ite d States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009). S e c t io n 2D1.1(b)(1) allows for a two-level sentence enhancement "[i]f a d a n g e r o u s weapon (including a firearm) was possessed." "The adjustment

s h o u ld be applied if the weapon was present, unless it is clearly improbable that t h e weapon was connected with the offense." § 2D1.1 cmt. 3. "For example, the e n h a n c e m e n t would not be applied if the defendant, arrested at his residence, h a d an unloaded hunting rifle in the closet." Id. The Government bears the b u r d e n of proving by a preponderance of the evidence that the defendant p o s s e s s e d the weapon and may do so by showing "that a temporal and spatial r e la t io n existed between the weapon, the drug trafficking activity, and the d e fe n d a n t ," which suffices to establish that the defendant personally possessed t h e weapon. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764-65 (5th Cir. 2 0 0 8 ). If the Government meets that burden, the burden shifts to the defendant t o show that it was clearly improbable that the weapon was connected with the o ffe n s e . United States v. Cooper, 274 F.3d 230, 246 n.8 (5th Cir. 2001). I n United States v. Partida, 385 F.3d 546, 562 (5th Cir. 2004), two law e n fo r c e m e n t officers convicted of drug trafficking crimes challenged the e v id e n t ia r y bases of their § 2D1.1(b)(1) enhancements. One of the officers, P a r t id a , was the acting chief of police of Donna, Texas. Id. at 551. He argued t h a t the guideline did not apply because there was no evidence demonstrating t h a t he possessed a firearm while escorting the drug dealer, turned government in fo r m a n t , through his patrol district in exchange for money. Id. at 562. This c o u r t rejected the argument, noting that the police department had in place a p o lic y that required officers to carry their weapons. Id. at 563. The other officer a r g u e d that, although he possessed the weapon while escorting the drug dealer t h r o u g h Donna, he did not possess a weapon while he committed the extortion o ffe n s e with which he was charged. Id. This court concluded that, because the 8

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No. 09-40520 o ffic e r was being sentenced under the cross-referencing provisions of § 2C1.1(c)(1), it mattered not whether the officer was armed when he committed t h e extortion offense because he was admittedly armed when he escorted the d r u g dealer. Id. R u iz seeks to distinguish this case from Partida based on the statement i n Partida that the Government was required to show that "the weapon was fo u n d in the same location where drugs or drug paraphernalia are stored or w h e r e part of the transaction occurred." Id. at 562 (quoting § 2D1.1 cmt. 3). He c o n t e n d s that no evidence exists to show that he wore his duty sidearm where t h e drugs were stored or where part of the transaction occurred. He adds that t h e evidence fails to demonstrate that he or the CW possessed a dangerous w e a p o n when the drugs were "actually being smuggled" and that absent such e v id e n c e the enhancement was improper. R u iz 's argument is unavailing. Ruiz a c k n o w le d g e s the PSR's statement that he wore his duty sidearm when he met w it h the CW and agreed to provide ancillary support for the narcotics for a fee. The PSR set forth that Ruiz carried a firearm "where part of the transaction o c c u r r e d ." The PSR stated that Ruiz met with the CW, while in uniform and w h ile carrying his sidearm, to discuss the terms of his assistance in smuggling t h e drugs and that, while wearing his sidearm, Ruiz assisted the CW in s m u g g lin g and transporting 25 kilograms of cocaine. That Ruiz never used or brandished his sidearm is irrelevant. See United S ta te s v. Marmolejo, 106 F.3d 1213, 1216 (5th Cir. 1997). The district court's fin d in g that Ruiz possessed a firearm during the commission of a drugt r a ffic k in g offense is not clearly erroneous because the finding is plausible in lig h t of the record read as a whole. See Scher, 601 F.3d at 413. Therefore, the d is t r ic t court did not err when it applied § 2D1.1(b)(1) to enhance Ruiz's s e n te n ce . C. 9

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No. 09-40520 Ruiz also argues that the district court erred when it determined that he w a s not eligible for a two-level reduction under §§ 2D1.1(b)(11) and 5C1.2(a)(1)(5 ), the guidelines "safety valve," because he possessed a firearm. Under

§ 5C1.2, for a defendant convicted of certain controlled substance offenses, "the c o u r t shall impose a sentence in accordance with the applicable guidelines w it h o u t regard to any statutory minimum sentence" when, among other r e q u ir e m e n t s , "the defendant did not . . . possess a firearm or other dangerous w e a p o n (or induce another participant to do so) in connection with the offense." United States v. Matias, 465 F.3d 169, 171 (5th Cir. 2006) (quoting § 5C1.2(a)(2)). A defendant who meets the safety valve criteria may receive a t w o -le v e l reduction in his offense level under § 2D1.1(b)(11), even if, like Ruiz, h e does not face a mandatory minimum sentence. See id. at 171-72. The district c o u r t's factual findings regarding a safety-valve adjustment are reviewed for c le a r error. United States v. Miller, 179 F.3d 961, 963-64 (5th Cir. 1999). Ruiz acknowledges that the reduction is not available if a defendant p o s s e s s e d a firearm but argues that, even if the district court correctly enhanced h is sentence under § 2D1.1(b)(1), such a finding did not operate to bar him from t h e safety-valve reduction. In support of his argument, he cites a Tenth Circuit c a s e for the proposition that § 5C1.2(a)(2) is narrower than § 2D1.1(b)(1) and r e q u ir e s "actual possession" by a defendant. See United States v. Zavala-

R o d r ig u e z , 379 F.3d 1182, 1186 (10th Cir. 2004). I n Matias, this court noted the Tenth Circuit's minority view and rejected t h e argument that Ruiz advances. 465 F.3d at 173-74 n.14. The court stated t h a t it had held "in numerous contexts that the concept of possession of a w e a p o n encompasses both actual possession and constructive possession" and h e ld that there was no reason to exclude constructive possession from the safety v a lv e provision. Id. at 174 (citations omitted). Because Ruiz "possessed" a

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No. 09-40520 f i r e a r m during his offense, the district court did not err when it declined to r e d u c e Ruiz's offense level under the safety valve provision. D. F in a lly , Ruiz argues that his 168-month sentence was substantively u n r e a s o n a b le because (1) when the district court cross referenced his offense it v a s t ly overstated the severity of the bribery case for which he was convicted, and (2 ) application of § 2D1.1(b)'s enhancement for possessing a firearm and § 3 B 1 .3 's enhancement for abusing a position of trust effectively subjected him to d o u b le or triple punishment for his offense conduct. Ruiz did not object to the reasonableness of his sentence before the district c o u r t; therefore this court's review is for plain error. See United States v. Peltier, 5 0 5 F.3d 389, 391-92 (5th Cir. 2007). To establish plain error, Ruiz must first s h o w a forfeited error that is clear or obvious and that affects his substantial r ig h t s . See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes s u c h a showing, this court may exercise its discretion to correct the error but o n ly if it "seriously affect[s] the fairness, integrity, or public reputation of ju d ic ia l proceedings." See id. (citation omitted). " A discretionary sentence imposed within a properly calculated guidelines r a n g e is presumptively reasonable." United States v. Campos-Maldonado, 531 F .3 d 337, 338 (5th Cir. 2008) Ruiz's history and characteristics did not require a sentence lower than the sentence the guidelines provide. See Rita, 551 U.S. a t 360. "[T]he sentencing judge is in a superior position to find facts and judge t h e ir import under § 3553(a) with respect to a particular defendant." CamposM a ld o n a d o , 531 F.3d at 339. A defendant's disagreement with the propriety of t h e sentence imposed does not suffice to rebut the presumption of r e a s o n a b le n e s s that attaches to a within-guidelines sentence. See United States v . Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008); United States v. R o d r i g u e z , 523 F.3d 519, 526 (5th Cir. 2008). Ruiz has not shown that his 11

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No. 09-40520 s e n te n c e was substantively unreasonable, see Gall, 552 U.S. at 51, nor has he r e b u t te d the presumption of reasonableness that attaches to his withing u id e lin e s sentence. See Gomez-Herrera, 523 F.3d at 565-66. Accordingly, he h a s not shown any error, plain or otherwise. III. F o r the foregoing reasons, the judgment of the district court is A F F IR M E D .

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