     Case: 18-50159      Document: 00514958735         Page: 1    Date Filed: 05/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-50159                  United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                       May 15, 2019
UNITED STATES OF AMERICA,
                                                                      Lyle W. Cayce
              Plaintiff - Appellee                                         Clerk


v.

ISAAC RAMOS,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas


Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Isaac Ramos appeals his sentence following a guilty plea conviction for
conspiracy to possess a controlled substance and possession with intent to
distribute a controlled substance. He contends that the district court erred by
applying a two-level aggravating role guideline enhancement under U.S.S.G.
§ 3B1.1(c). Because Ramos has not demonstrated clear error, we affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-50159
                                       I.
      Ramos was charged for his role in a cocaine transaction with a Drug
Enforcement Administration (“DEA”) undercover agent. On July 24, 2017,
Mariano Gamez arranged a cocaine sale with the undercover DEA agent by
phone. Gamez confirmed that he could deliver three kilograms of cocaine that
afternoon and they agreed to meet at the Sunland Park Mall. Gamez picked
up Ramos and Jose Castillo from a Church’s Chicken in El Paso before driving
to the mall. At the meeting in the parking lot of the mall, the DEA agent
observed the three kilograms of cocaine located in a gift bag inside the car and
all three occupants of the car were arrested. When the vehicle was searched,
law enforcement found a loaded firearm under the passenger seat of the car.
According to the government, the gun belonged to Castillo. After his arrest,
Gamez provided a statement. Gamez acknowledged communicating with the
DEA undercover agent who had posed as a buyer of cocaine. He said he was
supplied with three kilograms of cocaine by “Patitas,” later identified as
Ramos.
      On August 16, 2017, Ramos was indicted for conspiracy to possess with
intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§
846, 841 (Count One) and possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. § 841 (Count 2). Ramos pleaded guilty
without a plea agreement.
      In the initial PSR, the probation officer noted that there was insufficient
information to determine whether a role adjustment was appropriate for
Ramos:
      According to Gamez’ statement to agents, he negotiated the
      cocaine deal with a DEA undercover agent while Ramos supplied
      the cocaine. There is no additional substantiated information to
      determine the role of Gamez and Ramos in this case. As such, an


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                                       No. 18-50159
       adjustment for role, pursuant to USSG §3B1.1 and 2, could not be
       determined as to Gamez and Ramos.

Therefore, no role enhancement was added. In the initial PSR, the probation
officer did recommend a two-level enhancement for possession of a dangerous
weapon during the commission of the offense pursuant to U.S.S.G.
§ 2D1.1(b)(1). Ramos had only one criminal history point 1 and the
enhancement for possession of a weapon made him ineligible for a safety-valve
reduction under the Guidelines. 2 Without the application of the statutory
minimum, Ramos’s advisory guideline range was 57–71 months of
imprisonment. 3 Because Ramos was ineligible for the safety-valve reduction,
however, the statutory minimum of 5 years applied and Ramos’s guideline
range was 60–71 months.
       Ramos did not object to the factual recitation in the initial PSR, but filed
one objection to the two-level upward adjustment for possession of a firearm,
pursuant to U.S.S.G. § 2D1.1(b)(1). 4 At the first sentencing hearing, the
government agreed with Ramos’s objection to the firearm enhancement. 5 The
district court probed the parties: “So he is getting two breaks here. He is not
getting [the firearm enhancement], and he didn’t get an 851 enhancement as



       1  Ramos’s criminal history point was for a 2013 conviction for possession with intent
to distribute methamphetamine.
        2 U.S.S.G. § 5C1.2(a)(2). That subsection provides that the defendant is only eligible

if “the defendant did not use violence or credible threats of violence or possess a firearm or
other dangerous weapon (or induce another participant to do so) in connection with the
offense.” Id.
        3 Ramos had a criminal history category of I and a total offense level of 25.
        4 In his written objection, Ramos noted that at Gamez’s earlier sentencing hearing,

the government had informed the court that Castillo claimed ownership of the gun and that
Castillo told the government that Ramos did not know Castillo had a gun.
        5 The government stated: “Your Honor, the statement of Mr. Castillo was, is he

brought the gun along. He, Mr. Castillo, owned the gun. And he said Mr. Ramos had no
authority, control, ownership interest or anything along those lines. Mr. Ramos may have
known about the gun. He may not have known about the gun. But Mr. Castillo did take
responsibility for it. So that is the basis for my position, Judge.”
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                                     No. 18-50159
part of the indictment. Right? . . . And he is the supplier of the 3 kilos and
actually had offered 10 to begin with. That just doesn’t make sense.” The
district court then held a sealed discussion at sidebar. During that sidebar, the
government explained the structure of the drug transaction. The government
stated that through a series of “debriefs,” it learned that Ramos was a
“broker”—he generally contacted a man named Estrada to supply cocaine, but
because he was on bad terms with Estrada, instead contacted Castillo to supply
the cocaine. The district court sustained the objection to the firearm
enhancement, but then stated: “In fact, you know . . . he can still get the plus
2 for coordinating because the coordination does not take into consideration
number of participants. So, in fact, I am going to recess this hearing, come
back, because I want to research that.” Again in open court, the district court
stated:
      The objection to the plus 2 levels [sic] enhancement found on
      paragraph 20 . . . is sustained. . . . I find that that doesn’t
      automatically make[] Mr. Ramos safety valve eligible because the
      facts stated on the PSR substantiate that the was a coordinator as
      he was involved with Co-defendant Gamez. He was involved with
      his supplier of the cocaine in setting up the transaction. . . . So that
      clearly takes Mr. Ramos out of the safety valve eligibility.

The sentencing hearing was reset. Probation revised the PSR, removing the
firearm enhancement and adding a two-level aggravating role enhancement
pursuant to U.S.S.G. § 3B1.1(c). 6       In the revised PSR, the probation officer
amended Paragraph 11—in contrast to the initial PSR’s conclusion that “an




      6 The revised PSR stated: “Further, based on available information, Ramos is viewed
as an organizer during these drug negotiations and a two-level upward adjustment for
aggravating role, pursuant to USSG §3B1.1(c) is warranted. As a result, paragraphs 11 and
22 of the presentence report were revised to reflect that a two-level decrease, pursuant to
USSG §2D1.1(b)(17) and USSG §5C1.2(a)(1)-(5), is not warranted as to Ramos.”
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                                        No. 18-50159
adjustment for role . . . could not be determined,” the probation officer
explained:
       According to Gamez’ statement to agents, he negotiated the
       cocaine deal with a DEA undercover agent while Ramos supplied
       the cocaine. . . . [A]s to Ramos, who supplied the cocaine in this
       transaction, coordinated with his cocaine supplier in addition to
       inviting Castillo, who possessed the weapon, to accompany them
       during this drug transaction. As such Ramos is viewed as an
       organizer and a two-level upward adjustment for aggravating role,
       pursuant to USSG §3B1.1(c) is warranted as to Ramos. Further,
       because Ramos is considered an organizer, a decrease of two-levels,
       pursuant to USSG §2D1.1(b)(17) and USSG §5C1.2(a)(1)-(5), is not
       warranted.

There was no additional factual information added to the PSR discussing
Ramos’s role in the transaction. The guideline range remained 60–71 months
and Ramos continued to be ineligible for the safety-valve reduction, this time
on account of the aggravating role enhancement. 7
       Again, Ramos made no objection to the factual recitation in the revised
PSR, but prior to the second sentencing hearing, he filed a sentencing
memorandum objecting to the aggravating role enhancement. Ramos argued
that he took no supervisory role in the transaction and lacked the mental
capacity to organize, lead, manage, or supervise others. At the second
sentencing hearing, the district court overruled the objection. With respect to
his mental capacity, the district court found that Ramos “has limited
intelligence, but he clearly can tell right from wrong.” As to Ramos’s role in the
offense, the district court stated that the factual recitation in the PSR (to which
Ramos did not object) showed that Gamez contacted Ramos to supply or
coordinate supplying the cocaine. The court noted that “Castillo show[ed] up


       7  U.S.S.G. § 5C1.2(a)(4) provides that the defendant is only eligible for the safety valve
if “the defendant was not an organizer, leader, manager, or supervisor of others in the offense,
as determined under the sentencing guidelines.”
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                                      No. 18-50159
at the event at the invitation of Mr. Ramos. . . . Show me discovery where it
says that Gamez was communicating with Castillo. Show it to me because it is
not in the PSR. And you have zero objection to the facts in the PSR.” At this
point, Ramos’s counsel asked to approach and the court held a bench
conference off the record. 8 After that conference, the court concluded,
       Whoever was the supplier of the cocaine to Mr. Ramos, it is
       irrelevant because but for Mr. Ramos this doesn’t happen. . . . And
       the facts that have been presented on the PSR reflect that Mr.
       Ramos had to deal with at least, at least two individuals to make
       this happen, at least. So but for him, this transaction doesn't take
       place. So your objection to the plus-2 level for aggravating role is
       overruled.

The district court sentenced Ramos to 60 months’ imprisonment and four years
of supervised release. Ramos objected to the ruling and sentence and this
appeal followed.
                                             II.
       “The district court’s ‘interpretation or application of the Sentencing
Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear
error.” 9 “Whether a defendant exercised an aggravating role as an organizer,
leader, manager, or supervisor for purposes of an adjustment under U.S.S.G.
§ 3B1.1(c) is a finding of fact reviewed for clear error.” 10 In reviewing a district
court’s determination “that a defendant qualifies for an offense level
adjustment for an aggravating or mitigating role . . . [a] district court’s factual
findings are not clearly erroneous if they are ‘plausible in light of the record as




       8 The district court asked defense counsel if he needed a record and he responded, “I
do not need a record.”
       9 United States v. Torres-Hernandez, 843 F.3d 203, 207 (quoting United States v. Lige,

635 F.3d 668, 670 (5th Cir. 2011)).
       10 United States v. Ochoa-Gomez, 777 F.3d 278, 281 (5th Cir. 2015) (citing United

States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006)).
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                                       No. 18-50159
a whole.’” 11 For the purposes of applying an aggravating role adjustment, “[a]
defendant’s role in the criminal activity . . . may be deduced inferentially from
available facts.” 12
       The Sentencing Guidelines provide that the district court should
increase the offense level if the defendant played an aggravating role in the
offense. 13 That guideline sets out three separate adjustment levels based on
the scope of criminal enterprise and the role of the defendant:
       (a) If the defendant was an organizer or leader of a criminal
       activity that involved five or more participants or was otherwise
       extensive, increase by 4 levels.
       (b) If the defendant was a manager or supervisor (but not an
       organizer or leader) and the criminal activity involved five or more
       participants or was otherwise extensive, increase by 3 levels.
       (c) If the defendant was an organizer, leader, manager, or
       supervisor in any criminal activity other than described in (a) or
       (b), increase by 2 levels. 14

The application notes to the aggravating role guideline 15 indicate that to
qualify for an adjustment the defendant “must have been the organizer, leader,
manager, or supervisor of one or more other participants.” 16 “An upward
departure may be warranted, however, in the case of a defendant who did not
organize, lead, manage, or supervise another participant, but who nevertheless


       11  United States v. Miranda, 248 F.3d 434, 446 (5th Cir. 2001) (quoting United States
v. Alford, 142 F.3d 825, 831 (5th Cir. 1998)).
        12 United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (citing United States v.

Manthei, 913 F.2d 1130, 1135 (5th Cir. 1990)).
        13 U.S.S.G. § 3B1.1.
        14 § 3B1.1(a) – (c).
        15 This court has made clear that the application notes to the Sentencing Guidelines

“generally bind federal courts unless they are inconsistent with the text of the Guideline.”
Ochoa-Gomez, 777 F.3d at 282 (citing United States v. Garcia-Rodriguez, 415 F.3d 452, 455
(5th Cir. 2005)).
        16 § 3B1.1 cmt. n.2. A “participant” is defined as “a person who is criminally

responsible for the commission of the offense, but need not have been convicted.” § 3B1.1 cmt.
n.1. The definition of a participant excludes any person who is not criminally responsible for
the commission of the offense, such as an undercover law enforcement officer. Id.
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                                       No. 18-50159
exercised management responsibility over the property, assets, or activities of
a criminal organization.” 17
       Ramos contends that the district court committed reversible error in
applying the two-level aggravating role enhancement. Pointing to the
government’s characterization during the first sentencing hearing of his role
as a “middleman,” Ramos argues the facts do not establish that he directed or
exercised       management       responsibility    over   Castillo—he      disputes    the
characterization in the revised PSR that he “invit[ed] Castillo” to the drug
transaction. The government responds that the facts contained in the PSR
supported the aggravating role enhancement. The government points to the
statements in the PSR that Ramos “supplied the cocaine” and “coordinated
with his cocaine supplier in addition to inviting Castillo, who possessed the
weapon, to accompany them during this drug transaction.”
       After reviewing the factual recitation in the PSR (to which Ramos did
not object) and our precedent applying a § 3B1.1 enhancement, we conclude
that the district court did not clearly err in applying the two-level
enhancement. The PSR describes that Ramos coordinated with his cocaine
supplier, inviting Castillo to the transaction. “When making factual findings
for sentencing purposes, district courts ‘may consider any information which
bears sufficient indicia of reliability to support its probable accuracy’” and
“[g]enerally, a PSR ‘bears sufficient indicia of reliability to be considered as
evidence by the sentencing judge in making factual determinations.’” 18
Although Ramos contends on appeal that the evidence does not support the
characterization that he invited Castillo, he did not object to the factual
recitation. At the second sentencing hearing, the district court concluded that


       17   Id.
       18    United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal citations
omitted).
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                                      No. 18-50159
“Castillo show[ed] up at the event at the invitation of Mr. Ramos.” Ramos
concedes     that    Ramos’s     counsel     “appeared      to    disagree”    with    that
characterization only in an unrecorded bench conference.
       Exercising control over another participant is sufficient to support the
application of the enhancement. 19 Recruitment of a participant indicates an
exercise of control over that participant. 20 Ramos played a managerial role in
the transaction by directing another participant in the offense. The PSR
describes Ramos coordinating with Castillo to supply the cocaine, inviting him
into the transaction as a cocaine supplier. Based on that evidence and “in light
of the record as a whole,” the district court could plausibly conclude that Ramos
exercise an aggravating role in his offense by exercising control over another
participant, which supports a finding that he exercised an aggravating role
pursuant to § 3B1.1(c). 21
       Finally, Ramos’s contention that he lacked the intellectual capacity to
exercise supervisory control is unavailing. The PSR notes that Ramos reported
undergoing a number of intelligence tests as a child, some of which “revealed
Ramos was of normal intelligence” an others revealing “below average”
intelligence. The district court acknowledged its understanding that Ramos
had “limited intelligence,” but noted “he clearly can tell right from wrong.”
Ramos cites no authority for the proposition that an aggravating role




       19 § 3B1.1 cmt. n.2; United States v. Bowen, 818 F.3d 179, 192 (5th Cir. 2016)
(describing defendant’s decisions to hire other individuals to drive him to pick up drugs as
supporting a finding that he acted in a managerial role in the conspiracy).
       20 Id.; United States v. Fillmore, 889 F.3d 249, 255 (5th Cir. 2018) (holding that

enhancement is proper where evidence demonstrate that “the defendant recruited
accomplices and was involved in planning and organizing the offense”); see also United States
v. McLaughlin, 739 F. App’x 270, 278 (5th Cir. 2018) (emphasizing defendant’s recruitment
of other participants).
       21 Bowen, 818 F.3d at 192.

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                                     No. 18-50159
enhancement is improper when applied to someone with limited intelligence. 22
The district court plausibly concluded that Ramos had the mental capacity to
exercise an aggravating role in the offense.
                                           III.
      For the foregoing reasons, we affirm Ramos’s sentence.




      22Indeed, the Fourth Circuit in an unpublished decision upheld the application of the
enhancement to a defendant who submitted evidence of his “mental retardation and low IQ,”
which was 52. United States v. Plunk, 415 F. App’x 650, 651–53 (4th Cir. 2011).
                                            10
