United States v. Ramirez-Vega ( 1998 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2081
UNITED STATES,
Appellee,
v.
CARMELO RAMIREZ-VEGA, A/K/A TITO MORGAN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Boudin, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Edward E. Parson on brief for appellant.
Guillermo Gil, United States Attorney, Nelson Perez-Sosa, Assistant
United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation
Counsel, on brief for appellee.
March 17, 1998
Per Curiam. Defendant-appellant Carmelo Ramirez-Vega
appeals from his sentence imposed following a guilty plea to
possession with intent to distribute (with two co-defendants)
of two kilograms of cocaine. Appellant's sole issue on appeal
is that the court erred in imposing a two-level enhancement for
his supervisory role in the offense under Section 3B1.1(c) of
the United States Sentencing Guidelines. He seeks to have his
sentence vacated and remanded for a hearing on his role in the
offense.
The guilty plea was entered pursuant to a plea
agreement under Fed.R.Crim.P. 11(e)(1)(B). Appellant
specifically agreed that he "had an aggravating role as a
supervisor within the meaning of the Guidelines Section
3B1.1(c) and that, therefore, the base offense level shall be
increased by an additional TWO (2) levels." At his sentencing
hearing, appellant clearly stated that he did not wish to
withdraw his plea. Nor does he attack the validity of the plea
on appeal. Our careful review of the record reveals that there
is ample support for the district court's finding that Ramirez
had a supervisory role within the meaning of U.S.S.G.
3B1.1(c).
Under these circumstances, the district court did not
err in imposing a two-level enhancement for appellant's role in
the offense. Contrary to appellant's contentions, the district
court clearly set forth the reasons for imposing the
enhancement: 1) the plea agreement under which the sentence
was imposed specifically provided for the enhancement and 2)
there was factual support for the finding that appellant's role
was supervisory.
The information contained in the Presentence Report
("PSR") supported a finding that Ramirez "exercised control
over, or was otherwise responsible for organizing the
activities of, at least one other individual in committing the
crime." United States v. Akitoye, 923 F.2d 221, 227 (1st Cir.
1991). The PSR provided that Ramirez "was accompanied by
[Acevedo] on more than one of the former's drug negotiations."
PSR, p. 6. It further reported that
[a]ccording to the Assistant U.S. Attorney, [co-
defendant Acevedo] was the one who either helped
carry the cocaine, gave same to the buyer, and on
other occasions, delivered or accepted payments for
[Ramirez]. He had no decision making authority, nor
was he knowledgeable as to the details of the
negotiations or transactions.
PSR, p. 7. The PSR noted that Ramirez was "described as a
leader." Ramirez was often accompanied by Acevedo, but the
latter "exercised no role other than that of helper." PSR, p.
7. "[F]actual averments contained in the PSI Report usually
are deemed reliable enough to be used for sentencing purposes."
United States v. Brewster, 127 F.3d 22, 28 (1st Cir. 1997).
The district court did not err in relying -- in part --
upon information from a co-defendant's guilty plea and
sentencing hearings, where appellant had the opportunity to
respond to that information before his sentence was imposed.
Compare United States v. Berzon, 941 F.2d 8, 21 (1st Cir.
1991). Nor, under these circumstances, did the court abuse its
wide discretion in failing to hold an evidentiary hearing to
consider statements that appellant indicated would be provided
by his co-defendants regarding his role in the offense. "[T]he
decision to hold an evidentiary hearing at the time of
sentencing or, alternatively, to eschew such a hearing, lies
within the sound discretion of the sentencing court." United
States v. Robles-Torres, 109 F.3d 83, 85 (1st Cir. 1997).
Appellant's conviction and sentence are summarily
affirmed. See Loc. R. 27.1.