US v. Gilberto Ramos, No. 13-4732 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4732 UNITED STATES OF AMERICA, Plaintiff Appellee, v. GILBERTO RAMOS, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (1:12-cr-00224-GBL-1) Submitted: April 29, 2014 Decided: May 8, 2014 Before KEENAN, DIAZ, and THACKER, Circuit Judges. Affirmed by unpublished per curiam opinion. Joseph D. King, KING, CAMPBELL, PORETZ, PLLC, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Michael P. Ben Ary, Elizabeth N. Eriksen, Nicholis D. Mutton, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Gilberto Ramos was convicted after a jury trial of conspiracy to distribute five kilograms or more of cocaine, in violation of Government (2012), 21 filed to U.S.C. an § 846 (2012). information establish Ramos Prior pursuant 1990 to 21 California felony possession of marijuana for sale. to trial, U.S.C. the § 851 conviction for The district court imposed a statutory mandatory minimum sentence of 240 months of imprisonment, a downward variance from the Guidelines range of 292 to 365 months. court erred whether he in had On appeal, Ramos argues that the district failing to previously submit been to the convicted jury of the a issue felony of drug offense sufficient to trigger the enhanced statutory mandatory minimum penalties and that the district court erred by applying a four-level enhancement for his leadership role in the drug conspiracy. Finding no error, we affirm. In order to demonstrate that the district court erred in failing to submit his prior felony drug offense to the jury, Ramos relies primarily on the Supreme Court s recent decision in Alleyne v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013) (holding that any fact that increases statutory mandatory minimum is element of offense that must be submitted to jury and found beyond a reasonable doubt). Ramos correctly acknowledges, however, that this claim is foreclosed by Almendarez-Torres v. 2 United States, 523 U.S. 224 (1998). See Alleyne, 133 S. Ct. at 2160 n.1; see also United States v. McDowell, 745 F.3d 115, 123-24 (4th Cir. 2014) ( Almendarez-Torres remains good law, and we may not disregard it unless and until the Supreme Court holds to the contrary. ). Thus, this claim is without merit. Next, Ramos argues that the district court erred by applying a four-level enhancement for his leadership role in the drug conspiracy. A four-level enhancement for a defendant s role in the offense may be applied [i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive. U.S. Sentencing Guidelines Manual ( USSG ) § 3B1.1(a) (2012). Ramos does not contest that the criminal activity in this case involved five or more participants or was otherwise extensive but argues that the evidence was insufficient to establish that he exercised any leadership role. [T]he aggravating role adjustment is appropriate where the evidence demonstrates that the defendant controlled the activities of responsibility. other participants or exercised management United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010) (internal quotation marks omitted; discussing USSG § 3B1.1(b)); see United States v. Thorson, 633 F.3d 312, 318 (4th Cir. § 3B1.1(a)). 2011) (discussing factors used in applying The defendant need only have exercised control 3 over one participant. See USSG § 3B1.1 cmt. n.2. This court reviews court s leadership the district enhancement for clear error. 411, 414 (4th Cir. 2013). application of a United States v. Steffen, 741 F.3d Our review of the record leads us to conclude that the district court did not clearly err in finding that the § 3B1.1(a) enhancement was supported by the testimony describing Ramos actions directing others, arranging cocaine shipments, and collecting money. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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