United States v. Oscar Luis Ramos Alarcon

194 F. App'x 727
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 1, 2006
Docket06-11355; D.C. Docket 04-20179-CR-DLG
StatusUnpublished

This text of 194 F. App'x 727 (United States v. Oscar Luis Ramos Alarcon) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Oscar Luis Ramos Alarcon, 194 F. App'x 727 (11th Cir. 2006).

Opinion

PER CURIAM:

Oscar Luis Ramos Alarcon appeals his sentence, imposed after he was convicted of importing heroin in violation of 21 U.S.C. § 963. He contends that the district court erred in denying his request for a minor role reduction, pursuant to U.S.S.G. § 3B.2 (2005). Under clear error review, we conclude that the district court did not err in refusing to apply the minor role reduction because Alarcon imported a substantial amount of heroin and he has not proven that his conduct was less significant than other participants. Thus, we AFFIRM Alarcon’s sentence.

I. BACKGROUND

A grand jury indicted Alarcon, with ten others, in an eight count indictment charging various drug trafficking offenses. The four counts that applied to Alarcon charged him with: (1) conspiring to import heroin, in violation of 21 U.S.C. § 963 (Count 1); (2) importing heroin, in violation of 21 U.S.C. § 952 (Count 4); (3) conspiring to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 (Count 5); and (4) possessing with intent to distribute cocaine, in violation of 21 U.S.C. § 841 (Count 8). The statutory mandatory minimum penalty under Count 1 was 120 months of imprisonment, and five years of supervised release. 21 U.S.C. § 960(b)(1). At a plea hearing in November 2005, Alarcon made no objections to the government’s factual basis for the crime and pled guilty to Count 1, as per a written plea agreement. The court accepted his plea and adjudicated him guilty.

According to the presentence investigation report (“PSI”), as a result of wire tap interceptions in both the United States and Colombia, and surveillance in the United States, on 7 April 2004, Alarcon was approached by U.S. law enforcement agents in the lobby of a Miami, Florida, hotel, and consented to a search of his luggage. Although the agents did not find any narcotics on the scene, they took the luggage and later found over two kilograms of heroin that was well-concealed in the siding of the luggage. The agents let Alarcon go, but when he returned to Colombia he was captured, bound, and tortured by others in the conspiracy who believed he had stolen the heroin. Alarcon *729 was eventually arrested in Colombia and extradited to the United States. Alarcon told the probation officer that he was going to be paid $15,000 for transporting the heroin to the United States.

Alarcon filed written objections to the first PSI, arguing that: (1) he should receive the benefit of the safety valve; (2) his offense level should be reduced for his minor role in the offense; and (3) he should be sentenced below the applicable advisory guideline due to the fact that he was captured, bound, and tortured when he returned to Colombia. In the Second Addendum to the PSI, the probation officer explained that due to Alarcon’s objection regarding the safety valve, the PSI had been revised to give him the benefit of that provision. The probation officer also explained that a minor role adjustment was not warranted because Alarcon was only being held responsible for the heroin he had possessed, and the officer further noted that Alarcon was more culpable than a number of his co-defendants. Finally, the probation officer noted that the government had agreed to a one level departure because Alarcon had been tortured.

The revised PSI gave Alarcon a base offense level of 32, as per U.S.S.G. § 2Dl.l(c)(4). The PSI subtracted two levels because he qualified for the safety valve under U.S.S.G. § 5C1.2, as per U.S.S.G. § 2Dl.l(b)(7), subtracted a further two levels because Alarcon had accepted responsibility, as per U.S.S.G. § 3El.l(a), and subtracted one level because the government had filed a motion stating that he had assisted them, as per U.S.S.G. § 3El.l(b). Thus, the PSI gave Alarcon a total offense level of 27. The PSI listed no prior convictions resulting in zero criminal history points and a criminal history of category I.

With an offense level of 27 and a criminal history of category I, the PSI gave Alarcon a Sentencing Guidelines range of 70 to 87 months of imprisonment and three to five years of supervised release. The PSI noted that the statutory mandatory minimum for the offense was a term of imprisonment of ten years, or 120 months, and a term of supervised release of at least five years. However, because Alarcon qualified for the safety valve at U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f), the PSI noted that the court could disregard the statutory mandatory minimum and sentence Alarcon according to the guidelines range.

At the sentencing hearing, neither party raised additional objections to the PSI. Both the issue of the two-level reduction through the safety valve and the issue of the one-level departure in recognition of the fact that Alarcon had been tortured were resolved without argument as the government told the court that it agreed with both.

As to the minor role adjustment, Alar-con’s counsel argued that Alarcon was merely a courier, pointing out that he had no interest in the drugs, had no knowledge of the kind or quantity of the drugs in the suitcase, and that someone else had purchased his plane tickets for him. Further, he argued that the probation officer’s response, that one of Alarcon’s co-defendants had a more minor role, was incorrect, and described the co-defendant’s activities in support of his argument, including alleging that the co-defendant had distributed almost 50 kilograms of cocaine. However, the government argued that Alarcon’s counsel was incorrect about the co-defendant, alleging that he had only purchased plane tickets for couriers.

The court then suggested that they “first look at the conduct of the defendant.” R4 at 14. Alarcon’s counsel then confirmed that Alarcon knowingly brought more than two kilograms of heroin into the country in the suitcase. The court noted *730 that the amount of the drugs was only one factor, but found that “in this particular case we have a defendant traveling from a foreign country with a staggering amount of heroin.... [E]xtraordinary, to say the least.” Id. The court also noted that while counsel had argued Alarcon was a typical courier, “frankly the typical courier doesn’t have two kilos of heroin.” Id. at 15. The court concluded that, “even before reaching the comparative conduct [prong],” his conduct was so substantial as to disqualify him from receiving the minor role adjustment. Id. The court did acknowledge Alarcon’s counsel had made a comparative argument that was “well taken,” but accepted the government’s explanation that the co-defendant had not had “direct involvement ... equal to [Alarcon’s] involvement.” Id.

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Bluebook (online)
194 F. App'x 727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-oscar-luis-ramos-alarcon-ca11-2006.