    13-4876-cr
    United States v. Holder


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
    York, on the 9th day of December, two thousand fourteen.

    PRESENT:
               ROBERT D. SACK,
               GERARD E. LYNCH,
               RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
    _____________________________________

    UNITED STATES OF AMERICA,

                              Appellee,

                       v.                                            13-4876-cr

    RAMELL HOLDER, AKA Edward Holder,

                              Defendant-Appellant.

    _____________________________________

    FOR APPELLEE:                                WENDY L. FULLER, Assistant United States
                                                 Attorney (Gregory L. Waples, Assistant United
                                                 States Attorney, on the brief), for Tristram J.
                                                 Coffin, United States Attorney, District of
                                                 Vermont, Burlington, VT.
FOR DEFENDANT-APPELLANT:                   BARCLAY T. JOHNSON (David L. McColgin
                                           on the brief), for Michael L. Desautels, Federal
                                           Public Defender, District of Vermont,
                                           Burlington, VT.

       Appeal from a judgment of the United States District Court for the District of

Vermont (William K. Sessions III, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Ramell Holder appeals his 168-month sentence, imposed after he pled guilty to one

count of conspiracy to distribute 500 grams or more of cocaine and one count of money

laundering. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846; 18 U.S.C. §§ 1957(a) and 2. The

parties dispute whether the appeal waiver provision in the plea agreement is applicable in

light of the district court’s arguable failure accurately to describe the terms of the waiver

during Holder’s plea allocution. See Fed. R. Crim. P. 11(b)(1)(N). Assuming without

deciding that the plea agreement’s appeal waiver does not bar Holder’s appeal of his

sentence, but see Tellado v. United States, 745 F.3d 48, 53-54 (2d Cir. 2014); United

States v. Cook, 722 F.3d 477, 482-83 (2d Cir. 2013), we nevertheless affirm the judgment

of the district court, as Holder’s attacks on his sentence lack merit.

       First, Holder challenges the district court’s finding that at least 15 kilograms of

cocaine were attributable to him. The pre-sentence report (“PSR”) calculated that Holder

was responsible for 15 to 50 kilograms of cocaine because one of his co-conspirators,

Kyle Marrero, stated that he purchased 10 to 20 ounces of cocaine from Holder on a


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weekly basis for nearly four years, and that he also purchased a kilogram of cocaine from

Holder on 8 or 9 occasions. At the sentencing hearing, however, Marrero testified that he

purchased only 10 to 20 ounces from Holder once or twice a month, and on the occasions

when he received a kilogram from Holder, he did not receive any additional cocaine.

Even taking the most conservative estimate from Marrero’s testimony, he received 370

ounces from Holder in monthly purchases, plus 8 kilograms, yielding a total of nearly

18.5 kilograms. A confidential informant also purchased 442 grams of cocaine from

Holder, so the total drug quantity even on the most conservative estimate is just under 19

kilograms. Holder argues that this amount should be discounted further because on some

occasions, Marrero received only an ounce or two of cocaine from him. But even taking

further reductions into account, the district court did not clearly err in finding that at least

15 kilograms of cocaine were attributable to Holder. See United States v. Prince, 110

F.3d 921, 924 (2d Cir. 1997).

       Second, Holder argues that the district court should not have applied the

aggravating role enhancement for being a “manager or supervisor” of criminal activity

involving five or more participants under United States Sentencing Guideline § 3B1.1(b).

Specifically, Holder argues that the district court did not make a finding that five or more

participants were involved, because it relied on the PSR’s conclusion that Holder’s

girlfriend, Erin McKenna, was a participant, without determining whether she was

criminally culpable. Holder’s characterization of the district court’s conclusions is

inaccurate. The court did not simply rely on the PSR. Instead, the court found that there

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were five or more individuals located in Vermont and that additional individuals were

involved in trips Holder made to New York to meet with his suppliers. Even without

including McKenna, the PSR listed four participants in Vermont besides Holder, namely,

Marrero, Marcus Sinclar, Jacky Castro, and the individual who would ultimately become

the confidential informant. In addition, Marrero testified that Holder had two suppliers in

New York, individuals named Deebo and Reyes. Further, Chris Allen testified in the

sentencing hearing that he purchased cocaine from Marrero, who was supplied by Holder,

and from Holder directly. Finally, Holder himself may be counted as a participant for

purposes of the role enhancement. See United States v. Paccione, 202 F.3d 622, 625 (2d

Cir. 2000). Accordingly, the district court’s finding that there were five or more

participants in the criminal activity is amply supported by the record even if McKenna

(who was not referred to by the district court) is excluded. The district court therefore did

not err in applying the role enhancement. See United States v. Simmons, 441 F. App’x

810, 811 (2d Cir. 2011) (summary order) (holding that although PSR identified only three

individuals with particularity, sufficient facts permit conclusion that “[i]n aggregate”

there were five participants); cf. United States v. Diamreyan, 684 F.3d 305, 309 (2d Cir.

2012) (“[P]articipants need not be identified by actual name in order for a supervisory

enhancement to apply, so long as the record allows the district court reasonably to find

the existence of other participants in the scheme.” (internal quotation marks omitted)).

       Finally, Holder contends that his sentence is disproportionate to those of his co-

defendants, none of whom received a sentence of incarceration. We have held that while

                                              4
18 U.S.C. § 3553(a) permits district courts to consider such disparities, it does not require

them to do so. See United States v. Wills, 476 F.3d 103, 110 (2d Cir. 2007), abrogated on

other grounds by Kimbrough v. United States, 552 U.S. 85 (2007). In any event, Holder

has not established that he was similarly situated to any of his co-defendants.

Accordingly, the district court committed no error in failing to reduce Holder’s sentence

based on the more lenient treatment of his co-defendants.

       We have considered Holder’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.

                                           FOR THE COURT:
                                           Catherine O’Hagan Wolfe, Clerk




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