United States v. Ortiz ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4797
RAUL RIOS ORTIZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-97-45)
Submitted: June 16, 1998
Decided: July 23, 1998
Before MURNAGHAN, ERVIN, and WILKINS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
D. Erik Albright, SMITH, HELMS, MULLISS & MOORE, Greens-
boro, North Carolina, for Appellant. Walter C. Holton, Jr., United
States Attorney, Timika Shafeek, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Raul Rios Ortiz pled guilty to attempting to possess cocaine with
intent to distribute, see 21 U.S.C. § 846 (1994), and was sentenced to
a term of 46 months imprisonment. He appeals his sentence, contend-
ing that the district court clearly erred in finding that he was responsi-
ble for three kilograms of cocaine and in finding that he had more
than a minor role in the offense. See U.S. Sentencing Guidelines
Manual §§ 2D1.1, 3B1.2 (1995). We affirm.
Postal inspectors searched an Express Mail package under a war-
rant and found 2.9 kilograms of cocaine. The package had been sent
to Ortiz's home addressed to Ramon Martinez. It bore a fictitious Cal-
ifornia return address. The inspectors removed all but 82.9 grams of
cocaine, replacing the rest with brown sugar. When a controlled deliv-
ery was made, Ortiz signed the receipt as Ramon Martinez and took
possession of the package. He then made a phone call, drove off with
the package in his car, and was arrested. Among the items seized from
his car were two false identification cards bearing Ortiz's picture and
the name Bryan Ramos.
Ortiz was charged with attempting to possess three kilograms of
cocaine with intent to distribute. At the sentencing hearing, Ortiz tes-
tified that his roommate, Javier, was to be paid $500 by Freddie
Andaya, a drug dealer, for receiving the package. He said he accepted
the package only because Javier was not home when the package
arrived. The detective who had interviewed Ortiz testified that Ortiz
acknowledged that he had called Andaya from jail, and had also told
the detective that deposits into his inmate account probably came
from Andaya. The detective also testified that Ortiz's name was found
on one page among papers seized from Andaya's residence, together
with figures which appeared to be records of money.
Ortiz first challenges the district court's decision to find him
responsible, for sentencing purposes, for the whole 2.9 kilograms of
cocaine originally contained in the package. Ortiz argues that he did
not know how much cocaine was in the package and was also igno-
rant of the full scope of Andaya's criminal activity. However, Ortiz
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knowingly involved himself in Andaya's criminal activity. He is thus
responsible for whatever amount of cocaine the package contained.
See USSG § 1B1.3, comment. (n.2(a)(1)) ("defendant who transports
a suitcase knowing that it contains a controlled substance . . . is
accountable for the controlled substance in the suitcase regardless of
his knowledge or lack of knowledge of the actual type or amount of
that controlled substance"). The district court thus did not clearly err
in holding Ortiz responsible for the full 2.9 kilograms of cocaine.
Next, Ortiz contests the district court's finding that he was not a
minimal or minor participant in the offense, arguing that he was less
culpable than Andaya and "at least two other participants" who were
involved with shipment of the package. A defendant has the burden
of showing, by a preponderance of the evidence, that he is entitled to
a mitigating role reduction. See United States v. Reavis, 48 F.3d 763,
768 (4th Cir. 1995). The issue is decided on the basis of relevant con-
duct, thus making the activities of other participants in a concerted
activity pertinent even if the defendant is the only one charged. See
USSG § 1B1.3(a)(1)(B); United States v. Fells, 920 F.2d 1179, 1183
(4th Cir. 1990). Here, the court impliedly rejected Ortiz's testimony
that his involvement in the conspiracy was limited to the receipt of
one package and came about only because Javier was not home when
the package was delivered. As Ortiz's testimony was undercut by the
fact that he had false identification cards in his car and his name
appeared among Andaya's records, we find that the district court did
not clearly err in finding that Ortiz had not made the necessary show-
ing.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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