United States v. Feliz-Ramirez

223 F. App'x 33
CourtCourt of Appeals for the Second Circuit
DecidedApril 17, 2007
DocketNos. 05-6254-cr(L), 06-0544-cr(CON), 06-1035-cr(CON)
StatusPublished
Cited by3 cases

This text of 223 F. App'x 33 (United States v. Feliz-Ramirez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Feliz-Ramirez, 223 F. App'x 33 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Defendants-Appellants each pleaded guilty to participation in a common conspiracy to distribute cocaine, and were sentenced in separate proceedings in the United States District Court for the Southern District of New York (Marrero, J.'). We assume the parties’ familiarity with the facts of these cases, their procedural histories, and the issues on appeal.

We review a district court’s sentencing decisions for both substantive and procedural reasonableness. See United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006).

A. Polman Tavares

Tavares argues that his 120-month sentence was unreasonable because the district court failed to recognize its authority to impose a sentence below the statutory minimum, based on Tavares’s eligibility for “safety valve” relief under 18 U.S.C. § 3553(f). The Probation Office, in its presentence report (“PSR”), determined that Tavares’s total offense level under the Sentencing Guidelines was 33, carrying with it a range of 135 to 168 months’ imprisonment. This offense level included a two-point downward adjustment based on the Probation Office’s finding that Tavares had met the safety valve criteria set [35]*35forth in U.S.S.G. § 5C1.2. The district court adopted the facts as found in the PSR, and accepted the calculation of Tavares’s offense level and Guidelines range. The court also found that Tavares’s relevant conduct encompassed more than 150 kilograms of cocaine, based in part on admissions Tavares made in his safety-valve proffer.

The court concluded that a below-Guidelines sentence of 120 months’ imprisonment was warranted, in light of the factors set forth in 18 U.S.C. § 3553(a) and to avoid disparities between Tavares’s sentence and those of similarly situated co-defendants. Although the district judge never referred to a mandatory minimum in sentencing Tavares, the 120-month sentence imposed coincides with the minimum applied to offenses involving five kilograms or more of cocaine. See 21 U.S.C. §§ 841 (b)(1)(A)(ii), 960(b)(1)(B).

We have held that once a district court determines that a defendant has met the criteria for safety valve eligibility under § 3553(f), “the court is required to disregard any mandatory minimum in imposing sentence.” United States v. Jeffers, 329 F.3d 94, 100 (2d Cir.2003). Neither the statute nor our case law, however, requires a district court in such circumstances to impose a sentence below the mandatory minimum. It is clear from the record that Judge Marrero took into account Tavares’s safety valve eligibility in determining the Guidelines range. Cf Jeffers, 329 F.3d at 101 (noting that “if the District Court finds that [the defendant] has satisfied the safety valve criteria, he would ordinarily be entitled to a two-level downward adjustment in his offense level”). In choosing to apply a sentence below that range, there was no indication that the court believed it was bound by the statutory minimum, as Tavares suggests. As a result, the sole ground on which Tavares contests his sentence fails.

B. Danillo Paredes-Silva

Paredes-Silva also received a sentence of 120 months’ imprisonment for his role in the conspiracy. Like Tavares, his total offense level was calculated to be 33, resulting in a Guidelines range of 135 to 168 months’ imprisonment. Paredes-Silva argues on appeal, as he did before the district court, that he should have been granted a two-level downward adjustment for minor role. See U.S.S.G. § 3B1.2(b). Had he received that reduction, he contends he then would have become eligible for a further four-level reduction, see U.S.S.G. § 2Dl.l(a)(3), and his applicable Guidelines range would have been 70 to 87 months.

An adjustment for mitigating role under the Guidelines is available only when the defendant is “substantially less culpable than the average participant” in a criminal activity. U.S.S.G. § 3B1.2 cmt. n. 3(A). A district court’s determination as to whether a defendant qualifies for the adjustment is “fact-sensitive.” United States v. Yu, 285 F.3d 192, 200 (2d Cir.2002). Here, the district court rejected Paredes-Silva’s argument that he merited the adjustment because his role in the conspiracy was that of a mere “delivery boy” or “gopher.” The court pointed out that Paredes-Silva admitted that he knew the conspiracy involved significant quantities of cocaine, and that along with other eo-eonspirators he had previously participated in the distribution of cocaine and heroin. Prior to his arrest, Paredes-Silva had been caught on tape discussing the drug transaction and notifying co-conspirators of the shipment’s arrival. Moreover, we have in the past rejected the proposition that “one who is simply a courier is automatically entitled to a § 3B1.2 minor role adjustment based on that status,” emphasizing that “[c]ouriers are indispensable to the smuggling and delivery of drugs and their proceeds.” [36]*36United States v. Garcia, 920 F.2d 153, 155 (2d Cir.1990).

Because Paredes-Silva failed to demonstrate that he was substantially less culpable than the average co-conspirator, we conclude that the district court did not err in declining to grant a minor role adjustment.

C. Gustavo Ramos

Ramos argues that the district court erroneously applied a three-level enhancement to his base offense level for his role as a manager or supervisor in the conspiracy. See U.S.S.G. § 3Bl.l(b). Ramos received a sentence of 230 months’ imprisonment, which fell below the Guidelines range of 262 to 327 months that the district court found applicable base4 on a total offense level of 38.

The district court found, based largely on Ramos’s own admissions, that for over a year prior to his arrest Ramos had been responsible for organizing drug deliveries, arranging for the collection of proceeds from drug transactions, and overseeing other aspects of the conspiracy’s drug activities. According to the PSR, Ramos traveled to New York with the primary purpose of supervising the cocaine delivery that led to his arrest, and had previously sent a co-conspirator to New York to reassure the local distributors. Wiretap evidence revealed Ramos giving directions to the distributors regarding the pick-up of the drugs. There was also evidence that Ramos was responsible for collecting money related to the transaction. Without disputing any of this evidence, Ramos argues that there was an insufficient factual basis to support the district court’s application of the aggravating role enhancement.

The Guidelines distinguish between the role of an “organizer or leader” of a criminal activity, for which a four-level enhancement is warranted, and that of a “manager or supervisor,” which warrants the three-level enhancement applied here. See U.S.S.G. § 3B1.1 & cmt. n. 4.

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Related

Paredes-Silva v. United States
632 F. Supp. 2d 349 (S.D. New York, 2009)
James v. United States
603 F. Supp. 2d 472 (E.D. New York, 2009)
Ramos v. United States
580 F. Supp. 2d 296 (S.D. New York, 2008)

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Bluebook (online)
223 F. App'x 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-feliz-ramirez-ca2-2007.