                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4912


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOSE MARCIAL RAMOS-HERNANDEZ,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:09-cr-00549-JCC-1)


Submitted:   April 19, 2011                   Decided:   May 13, 2011


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Jessica W. Knight, Special Assistant United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Jose        Marcial         Ramos-Hernandez           appeals          from     his

convictions       for    various        cocaine       offenses     and       his   resulting

120-month sentence.             On appeal, he challenges the sufficiency of

the evidence supporting two of his convictions and asserts that

the district court relied on clearly erroneous factual findings

in determining his sentence.              We affirm.



                                               I.

            A federal grand jury returned an indictment charging

Jose Marcial Ramos-Hernandez with conspiracy to distribute 500

grams or more of cocaine and three counts of distribution of

cocaine.     After pleading not guilty, Ramos-Hernandez consented

to a bench trial.              The evidence at trial showed that, over the

course of many transactions, undercover Detective Rafael Fortiz

purchased various items from Santos Rene Alfaro Rubio (“Rene”),

including stolen items, guns, and drugs.                           Specifically, Rene

sold cocaine to Fortiz on March 31 (one ounce), April 9 (one

ounce),    and    May    26,     2009    (four       ounces).      In    addition,         Rene

attempted to sell cocaine to Fortiz on May 19.                               At the May 26

sale, Rene and Ramos-Hernandez were arrested.

            Rene        pled    guilty     to        offenses     arising      from       these

transactions       and    testified        at       Ramos-Hernandez’s          trial.        He

stated     that    he     obtained       the        cocaine     sold    to    Fortiz       from

                                                2
Ramos-Hernandez.           In turn, Ramos-Hernandez obtained the cocaine

from Nelson Rivas Palacios, also known as Chepe.                            While evidence

showed that Rene initially told Fortiz that his supplier for the

March 31 transaction was not Ramos-Hernandez, Rene confirmed at

trial     that     the     only      source      he    had     for    all    the     charged

transactions was Ramos-Hernandez.

             With     regard         to   the       proposed    May     19    sale,       Rene

testified     that       he     ordered       sixteen       ounces    of     cocaine      from

Ramos-Hernandez, who indicated he could deliver it.                               However, a

lack of police resources caused Fortiz to cancel the sale and

reschedule for May 26.               On May 26, Ramos-Hernandez was only able

to get four ounces from Chepe.

             In a post-arrest interview, Ramos-Hernandez admitted

providing     Rene       with       cocaine     for    each    of     the    transactions.

Regarding    the     May       19   proposed        deal,    Ramos-Hernandez        admitted

that    he   saw    the       sixteen     ounces      originally       scheduled       to    be

delivered.         However, Ramos-Hernandez testified at trial that he

did not provide Rene with any cocaine prior to May 26.                                      He

claimed that he participated in the May 26 sale as a favor to

Rene.     He also testified that Chepe dealt between fifteen and

twenty ounces of cocaine a week.

             The    court       found     Ramos-Hernandez        guilty      on    all    four

counts.      The court explicitly found Ramos-Hernandez to not be

credible,     based       on    both      his    substantive         testimony      and     his

                                                3
demeanor.     The court also found Ramos-Hernandez responsible for

18   ounces       (or    510    grams)     of       cocaine    for     purposes     of   the

conspiracy count.          The court came to this amount by counting the

one-ounce transactions on May 31 and April 9, and attributing a

total of sixteen ounces to Ramos-Hernandez for the aborted May

19 and completed May 26 transactions.

             The         presentence            report          (“PSR”)          attributed

Ramos-Hernandez with 3.9123 kilograms of cocaine, based upon the

eighteen ounces found by the court as well as fifteen ounces a

week   for    the       time    period     between       the    first     and    the     last

transaction.             The     fifteen-ounce          amounts        were      based     on

co-conspirator          Chepe’s       sales,        about      which     Ramos-Hernandez

admitted knowing.          The PSR then calculated a Guidelines range of

151 to 188 months in prison.

             At     sentencing,          Ramos-Hernandez,            through        counsel,

challenged the drug quantity and sought either a departure or a

variance sentence, admitting that “the formal application of the

guidelines        are    accurate.”         The       court     held     Ramos-Hernandez

responsible       for    the    two   one-ounce        distributions,         the    sixteen

promised ounces, and four ounces from the final distribution.

Although twenty-two ounces calculates to 623 grams, the court

calculated    the       total    to   be   730       grams.      With     this    new    drug

amount, Ramos-Hernandez’s Guidelines range was 97 to 121 months.

Neither party objected.

                                                4
             The court sentenced Ramos-Hernandez to 120 months in

prison.        The       court    noted     that,       even    if    Ramos-Hernandez’s

Guidelines range had remained at 151-188 months, the court would

have imposed a variance sentence of 120 months, as the court

considered that sentence as “adequate . . . for deterrence and

punishment purposes” and proper comparatively to Rene’s 42-month

sentence.      The court then stated that the sentence reflected the

nature,      circumstances,         and     seriousness         of    the       offense      and

reflected     the    history      and     characteristics        of    Ramos-Hernandez.

Specifically,        the    court    recognized         Ramos-Hernandez’s           argument

that   his    overstated         criminal    history       merited         a    variance    and

rejected it.



                                            II.

             Ramos-Hernandez            contends         that        the        evidence     is

insufficient to support his conviction for the March 31 sale

based on Rene’s testimony that he initially told Fortiz that he

had a different supplier for that transaction.                                  “A defendant

challenging        the    sufficiency       of    the    evidence          to    support    his

conviction bears a heavy burden.”                       United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted).      We will uphold the jury’s verdict “if, viewing the

evidence in the light most favorable to the [G]overnment, it is

supported     by     substantial        evidence.”         United      States       v.     Reid,

                                             5
523 F.3d 310, 317 (4th Cir. 2008).                     We do not weigh evidence or

review witness credibility.                    United States v. Wilson, 118 F.3d

228,       234   (4th    Cir.       1997).        Rather,   it    is   the   role   of   the

fact-finder        to     judge       the    credibility     of    witnesses,       resolve

conflicts         in    testimony,          and    weigh    the    evidence.        United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).

                 Ramos-Hernandez’s challenge to the sufficiency of the

evidence is essentially a credibility challenge.                             Although Rene

testified at trial that Ramos-Hernandez was his only supplier,

Ramos-Hernandez argues that Rene’s testimony is not worthy of

belief given his prior inconsistent statement.                          However, it was

the    judge’s         role    to    assess       witness   credibility       and   resolve

conflicts in testimony.                 As we will not review the credibility

of     witnesses          or        re-weigh       their    testimony         on    appeal,

Ramos-Hernandez’s claim is without merit. 1




       1
        Ramos-Hernandez also asserts that the evidence was
insufficient to show that the conspiracy involved more than 500
grams of cocaine, because the one ounce from the March 31 sale
should be removed from the calculation based upon Rene’s
inconsistent statements.   However, because the court chose to
credit Rene’s in-court statements, the March 31 amount was
properly included, and this credibility determination is not
reviewable on appeal.



                                                  6
                                         III.

                 Ramos-Hernandez    contends       that   the       district      court

arrived at a clearly erroneous drug amount.                     Specifically, as

discussed above, the drug amounts found by the court add up to

only 623 grams, rather than the 730 cited by the district court.

Further,         Ramos-Hernandez    challenges      the   court’s      inclusion    of

both       the   sixteen   ounces   from    the    aborted    sale    and   the    four

ounces       from   the    replacement     sale.     However,        Ramos-Hernandez

admits that, whether the correct amount was 510, 623, or 730,

the Guidelines calculation would be the same.

                 Ramos-Hernandez    then       contends      that     the   district

court’s “significant procedural error” or “clear error” infected

the fairness of the rest of the sentencing hearing and caused

the district court to impose a higher sentence than it would

have had it realized the correct drug amount.                          According to

Ramos-Hernandez, the excess amount of cocaine discouraged the

district court from reducing the Guidelines range, imposing a

sentence at the bottom of the Guidelines range, or choosing to

impose a sentence below the Guidelines range. 2



       2
       The Government asserts that the district court was faced
with an applicable five-year (120-month) statutory minimum
sentence, effectively negating many of Ramos-Hernandez’s claims.
However, a five-year sentence correlates to only sixty months in
prison.



                                           7
               We review a sentence imposed by a district court for

reasonableness,         applying          an    abuse      of     discretion        standard.

Gall v. United States, 552 U.S. 38, 41 (2007).                                   Reliance on

“clearly        erroneous           facts”      will       constitute            “significant

procedural       error.”            Id.    at   51.        Assuming        Ramos-Hernandez

properly       requested       a     variance       sentence       below     his     advisory

Guidelines range, his claim that the district court relied on

clearly        erroneous       facts       is    reviewed         for    harmless     error.

Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (noting

that procedural errors at sentencing are “routinely subject to

harmlessness review”); see also United States v. Lynn, 592 F.3d

572,    576    (4th    Cir.    2010)       (holding       that    preserved       claims   are

reviewed for abuse of discretion, and if we find abuse, reversal

is     required       unless       we     conclude      the      error     was     harmless).

Procedural error is harmless if we can say with “fair assurance”

that     the     district          court’s      explicit         consideration       of    the

appropriate facts would not have affected the sentence imposed.

See    United     States      v.    Boulware,       604    F.3d    832,    838     (4th    Cir.

2010).

               We find that the district court’s error in this case

was merely harmless.               First, the district court did not commit

clear error by holding Ramos-Hernandez responsible for both the

sixteen ounces from the aborted May 19 sale and the four ounces

from the completed May 26 sale.                      There was testimony that the

                                                8
sixteen ounces were available for delivery on May 19, and no

testimony that the four ounces were somehow part of the original

sixteen ounces.        It is not clear error to find one amount (510

grams)   beyond    a   reasonable      doubt     and    a    larger    amount     by   a

preponderance of the evidence.              Thus, the proper amount, given

the district court’s findings, should have been 623 grams rather

than the erroneous 730 grams stated by the district court.

            Nonetheless, the record does not find any support for

the   conclusion       that   the    107-gram      difference          affected    the

district    court’s     consideration       of    the       appropriate      sentence.

First,     Ramos-Hernandez’s        offense      level       applied    to     cocaine

amounts from 500 grams to 2000 grams (two kilograms).                             U.S.

Sentencing Guidelines Manual § 2D1.1(c)(7) (2009).                        Thus, both

623 and 730 fall into the low end of the offense level, and it

is difficult to discern why the district court would treat them

differently.      Second, the district court was well aware of the

amount of drugs involved and the extent of Ramos-Hernandez’s

participation in the conspiracy, given that the court presided

over the bench trial.         As such, the court was not likely to be

depending heavily on the actual gram count for determination of

the final sentence.       Third, the court stated that 120 months was

the   appropriate      sentence     regardless    of     the    Guidelines      range.

Fourth, when the court was listing the reasons for its chosen

sentence, including crafting an appropriate sentence compared to

                                        9
Ramos-Hernandez’s         co-conspirator             and      affording          adequate

deterrence,   the    court      did     not    mention      the    730    grams    as    an

aggravating factor necessitating the chosen sentence.                            Finally,

there is simply no evidence in the record that the district

court considered the 730 gram finding (as opposed to the 510

gram finding after trial) to be an especially compelling factor.

The court only mentioned the drug amount when determining the

offense    level,    which        Ramos-Hernandez          agrees        was   correctly

calculated.

            Based    on   the     foregoing,        we     find    that    the    court’s

mathematical error was harmless.                 The record is clear that the

court   considered    120     months      to   be    the    appropriate        sentence,

regardless of the drug amount involved.                     Accordingly, we affirm

Ramos-Hernandez’s convictions and sentence.                        We dispense with

oral    argument    because       the    facts      and    legal     contentions        are

adequately    presented      in    the    materials         before    the      court    and

argument would not aid the decisional process.

                                                                                 AFFIRMED




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