United States v. Balbino Armando Ramos , 455 F. App'x 937 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 6, 2012
No. 11-12407
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 1:10-cr-20613-KMM-7
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
BALBINO ARMANDO RAMOS,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 6, 2012)
Before WILSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Balbino Armando Ramos was indicted on charges that he participated in a
drug distribution conspiracy involving the importation of three shipments of
cocaine and heroin. On the third day of trial, Ramos withdrew his not guilty plea
and pled guilty to one count of conspiracy to possess with intent to distribute 5
kilograms or more of cocaine, in violation of 21 U.S.C. § 846. The plea agreement
stipulated that his involvement would be limited to no more than 50 kilograms of
cocaine, which would be less than the entire drug quantity involved in the three
shipments. On appeal, Ramos argues that his 144-month sentence is procedurally
and substantively unreasonable. Specifically, he argues (1) that the sentencing
court failed to properly calculate the sentencing Guidelines range because it
attributed to him more than the 50 kilograms of cocaine contemplated by his plea
agreement, rendering his sentence procedurally unreasonable; and (2) that his
sentence was substantively unreasonable, primarily because the district court
refused to grant a downward variance to credit him for prison time served in error
on a prior vacated federal drug conviction.
I.
We first consider whether Ramos’s sentence was procedurally unreasonable.
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Ramos argues that the district court imposed an unreasonably severe sentence by
attributing to him almost the total amount of cocaine at issue in the case, even
though the evidence at trial showed that he only purchased 10 kilograms of
cocaine, and only received drugs from two out of three shipments. Although the
Government stipulated in the plea agreement that Ramos’s involvement would be
limited to no more than 50 kilograms of cocaine, the district court adopted the pre-
sentence investigation report’s (PSI) recommendation that Ramos should be held
accountable for a total of 59.92 kilograms of cocaine and 8.68 kilograms of heroin,
resulting in an increase in his base offense level. Ramos argues that based on the
trial evidence, as well as the plea agreement, the district court erred by relying on
the PSI’s disputed drug-quantity calculations.
We employ an abuse-of-discretion standard to review a sentence for
procedural reasonableness. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). The party challenging the sentence carries the burden of establishing
unreasonableness. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005) (per
curiam). Procedural errors at sentencing may include, among other things, the
district court’s improper calculation of the Guidelines range, or selection of a
sentence based on clearly erroneous facts. Gall, 552 U.S. at 51, 128 S. Ct. at 597.
Proper calculation of the Guidelines sentencing range requires consideration
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of all relevant conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.
2006). Relevant conduct should include all acts committed, aided, abetted,
procured, or wilfully caused by a defendant, and all reasonably foreseeable acts of
others in furtherance of a jointly undertaken criminal activity that occurred during
the commission of the offense. U.S. SENTENCING GUIDELINES MANUAL §
1B1.3(a)(1). The commentary clarifies that, in cases involving contraband, a
conspirator’s relevant conduct includes amounts directly attributable to the
conspirator and “all reasonably foreseeable quantities of contraband that were
within the scope of the criminal activity that he jointly undertook.” Id. at cmt. n.
2. “The district court’s determination of the drug quantity attributable to a
defendant is reviewed for clear error.” United States v. Chavez, 584 F.3d 1354,
1367 (11th Cir. 2009).
We cannot conclude that the district court’s decision to attribute the total
amount of the drugs involved in the conspiracy to Ramos was clearly erroneous or
otherwise impermissible. Ramos indicated during his plea colloquy that he
understood that the terms of the plea agreement were merely advisory, and that the
Court retained the ability to impose a sentence that might be higher or lower than
the sentence recommended by the Guidelines. Moreover, the evidence at trial
demonstrated that it was reasonably foreseeable to hold Ramos accountable for the
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entire drug quantity involved in all three deliveries, and there is nothing in the
record to suggest that Ramos disassociated himself from the conspiracy prior to
the third scheduled delivery in October of 2006. Therefore, Ramos cannot show
that the district court’s decision to hold him accountable for the entire drug
quantity involved in the three deliveries was clearly erroneous, and he cannot
show that his sentence was procedurally unreasonable.
II.
If the district court made no procedural errors, then the substantive
reasonableness of the sentence is reviewed to determine whether the sentence is
supported by the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 51, 128 S. Ct. at
597. Ramos asserts that the district court’s refusal to grant a downward variance
from the Guideline range to credit him for prison time he served in error on a prior
vacated federal drug conviction resulted in a substantively unreasonable sentence.
The weight given to any § 3553(a) factor is within the sound discretion of
the district court, and we will not substitute our judgment in weighing the relevant
factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). We only
remand a sentence when the district court commits “a clear error of judgment in
weighing the § 3553(a) factors by arriving at a sentence that lies outside the range
of reasonable sentences dictated by the facts of the case.” United States v. Pugh,
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515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).
We are unable to conclude that Ramos’s sentence was substantively
unreasonable. The district court considered the arguments Ramos made, including
the prison time served in error, but decided against granting a downward variance
because of Ramos’s otherwise extensive criminal history. Moreover, Ramos’s
sentence of 144 months falls squarely within the applicable Guideline range of
121 to 151 months, and we would ordinarily expect such a sentence to be
reasonable. Talley, 431 F.3d at 788.
Finding Ramos’s sentence to be procedurally and substantively reasonable,
we affirm.
AFFIRMED.
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