United States v. Ramirez-Vega

USCA1 Opinion [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 96-2081 UNITED STATES, Appellee, v. CARMELO RAMIREZ-VEGA, A/K/A TITO MORGAN,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.