     Case: 08-41058     Document: 00511191836          Page: 1    Date Filed: 08/02/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           August 2, 2010

                                       No. 08-41058                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

CHERYL KAY BROWN, also known as Cheryl Goodpaster Brown; THOMAS
PAUL RAMIREZ,

                                                   Defendants - Appellants




                    Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 4:07-CR-77


Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
        Thomas Paul Ramirez and Cheryl Kay Brown were jointly tried and
convicted, by a jury, for conspiring to possess, steal, or receive stolen mail matter
in violation of 18 U.S.C. § 371, and were each sentenced to five years’
imprisonment. On appeal, Ramirez challenges his conviction and sentence, and
Brown challenges her conviction. For the following reasons, we AFFIRM the
judgment of conviction and sentence for each defendant.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                              I. BACKGROUND
      Ramirez and Brown, along with fourteen coconspirators, were charged in
a ten-count indictment, which alleged that they were participants in a
conspiracy to steal mail. The Government alleged that the coconspirators would
use stolen financial and personal information from the mail to purchase
merchandise and gift cards, which they would later trade for drugs, typically
methamphetamine, or cash. As one coconspirator succinctly summarized at
trial, the coconspirators were united by “mail, meth, and theft.” Ramirez and
Brown were each charged with one count of conspiracy to possess, steal, or
receive stolen mail matter in violation of 18 U.S.C. § 371, and Brown was further
charged with three counts of possession, theft, or receipt of stolen mail matter
in violation of 18 U.S.C. § 1708. Both Ramirez and Brown pleaded not guilty to
these charges and proceeded to trial.
      During the joint trial, several coconspirators testified regarding the
conspiracy’s objectives and operation.      Regarding Ramirez, the testimony
indicated that he had stolen mail, transported stolen mail, sorted through stolen
mail, purchased items using credit cards stolen from the mail, and passed
fraudulent checks using information and documents obtained from the mail.
Concerning Brown, the Government presented evidence showing that, on the
night of her arrest, she and three other coconspirators had been stealing mail
and were driving a pickup truck containing two trash bags of mail. Further, the
Government offered testimony that Brown had sorted stolen mail both at her
house and at a game room that she managed.
      At both the close of the Government’s case and the close of all evidence,
Ramirez and Brown moved for judgments of acquittal, which the district court
denied. The case was submitted to the jury, which found Ramirez and Brown
guilty on the conspiracy charge, but found Brown not guilty on the possession of
stolen mail charges. A Presentence Investigation Report (PSR) was prepared for

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each defendant, calculating a 151–188 month United States Sentencing
Guidelines (the “Guidelines”) range for Ramirez and a 78–97 month Guidelines
range for Brown.       However, because the statutory maximum term of
imprisonment for the defendants’ convictions was five years, the recommended
Guidelines ranges were reduced to 60 months. The district court sentenced each
defendant to 60 months’ imprisonment and three years of supervised release.
Each defendant timely appealed.
                               II. DISCUSSION
                             A. Thomas Ramirez
      On appeal, Ramirez argues that (1) the district court erred in denying his
motion to suppress certain statements he made to investigators, (2) the evidence
presented at trial was insufficient to support his conviction, and (3) the district
court applied the wrong burden of proof at sentencing. We address each in turn.
 1. Whether the district court erred in denying Ramirez’s motion to suppress.
      While Ramirez was being transported to court for his initial hearing, he
initiated a conversation with postal inspectors, waived his Miranda rights, and
made a number of self-incriminating statements. Before trial, Ramirez moved
to suppress these statements, arguing that his waiver of Miranda rights had not
been “voluntary” because he was “not cogent” at the time due to back pain and
medication for that pain. At the suppression hearing, Ramirez’s theory changed
somewhat: specifically, it was the lack of pain medication, and the resulting
pain, that rendered his waiver involuntary. Following the suppression hearing,
the district court, adopting the recommendation of the magistrate judge, denied
Ramirez’s motion, finding that Ramirez made a knowing and voluntary waiver
of his Miranda rights and that he was not coerced in waiving those rights.
      On appeal, Ramirez argues that, at the time he made the statements, he
was handcuffed in an uncomfortable position, the inspectors knew that he was
in pain, and the inspectors knew that an attorney would shortly be present at

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his initial hearing to assist him. As such, Ramirez urges that his waiver of
Miranda rights was involuntary and that the district court erred in failing to
suppress his statements. We disagree.
      “[A] district court’s determination regarding the validity of a defendant's
waiver of his Miranda rights is a question of law reviewed de novo, but this court
accepts   the   factual   conclusions   underlying   the   district   court’s   legal
determination unless they are clearly erroneous.” United States v. Cardenas,
410 F.3d 287, 292 (5th Cir. 2005) (quotation marks omitted).
      The inquiry whether a valid waiver has occurred has two distinct
      dimensions. First, the relinquishment of the right must have been
      voluntary in the sense that it was the product of a free and
      deliberate choice rather than intimidation, coercion, or deception.
      Second, the waiver must have been made with a full awareness of
      both the nature of the right being abandoned and the consequences
      of the decision to abandon it.
Id. at 293 (quotation marks omitted). “The voluntariness determination is made
on a case-by-case basis and is viewed under the totality of the circumstances
surrounding the interrogation.” Id.
      The record here provides ample support for the district court’s conclusion
that Ramirez voluntarily waived his Miranda rights without coercion and with
knowledge of his rights. Inspectors transporting Ramirez testified that he was
cognizant of, and understood, what the agents were saying; was not babbling;
initiated conversation with the agents; and specifically understood his Miranda
rights. Further, the minutes of Ramirez’s initial appearance indicate that he
was “physically and mentally able, ready [to proceed]”; he testified under oath,
admitting that he understood what was going on; and his counsel thought that
“he appear[ed] to understand what’s going on and . . . that he [wa]s competent.”
Moreover, Ramirez does not point to any evidence that investigators in any way
coerced his waiver of Miranda rights. Instead, the record indicates that, though
Ramirez told the inspectors he was in some pain, the inspectors did nothing to

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cause or aggravate this pain; standard transportation and custody procedures
were followed; and Ramirez first initiated discussion with the inspectors
concerning his activities. See id. at 295 (indicating that handcuffing suspects is
standard police procedure which is not coercive).              In sum, given the
circumstances here, we find no error in the district court’s conclusion that
Ramirez’s waiver of his Miranda rights was knowing, voluntary, and uncoerced.
See id. at 297. The district court properly denied Ramirez’s motion to suppress.
         2. Whether sufficient evidence supports Ramirez’s conviction.
      Ramirez next argues that the only evidence presented linking him to the
conspiracy was the testimony of his coconspirators and that this testimony “was
so consistently unreliable” so as to be insufficient to support his conviction. We
are unpersuaded.
      Because Ramirez moved for acquittal, we ask “whether the evidence is
sufficient by viewing the evidence and the inferences that may be drawn from
it in the light most favorable to the verdict and determining whether a rational
jury could have found the essential elements of the offenses beyond a reasonable
doubt.” United States v. Valdez, 453 F.3d 252, 256 (5th Cir. 2006) (quotation
marks omitted). “It is not necessary that the evidence exclude every rational
hypothesis of innocence or be wholly inconsistent with every conclusion except
guilt, provided a reasonable trier of fact could find the evidence establishes guilt
beyond a reasonable doubt.” Id. (quotation marks omitted).
      Ramirez’s arguments challenging the credibility and weight of the
coconspirators’ testimony are unpersuasive. The sufficiency of the evidence
standard gives “full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307,
319 (1979); accord United States v. Casillas, 20 F.3d 600, 602 (5th Cir. 1994)
(“The jury is solely responsible for determining the weight and credibility of the

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evidence; this court will not substitute its own determination of credibility for
that of the jury.”).    Further, Ramirez’s argument that little direct evidence
implicates his involvement in the conspiracy also fails to persuade. See United
States v. Garcia Abrego, 141 F.3d 142, 155 (5th Cir. 1998) (“Circumstantial
evidence may establish the existence of a conspiracy, as well as an individual’s
voluntary participation in it, and circumstances altogether inconclusive, if
separately considered, may, by their number and joint operation . . . be sufficient
to constitute conclusive proof.” (quotation marks and alteration omitted)). Here,
as Ramirez admits, the Government did present evidence that linked him to the
conspiracy. Sufficient evidence supports the jury’s conviction, and we find no
error on this issue.
                3. Whether the district court erred at sentencing.
      Finally, Ramirez argues that the district court “should have used a higher
burden of proof at sentencing . . . because the weak evidence of intended loss
resulted in a drastically disproportionate effect on his sentence.” Specifically,
Ramirez argues that his offense level should not have been increased because
only a fraction of the actual and intended loss to victims were attributable to
him. Again, we are unpersuaded.
      “[A] district court’s interpretation or application of the . . . Guidelines is
reviewed de novo, and its factual findings are reviewed for clear error. There is
no clear error if the district court’s finding is plausible in light of the record as
a whole.” United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008)
(alteration omitted).    If the sentencing decision is procedurally sound, we
consider the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard. Id.
      Though we have recognized that a higher standard of proof may be
necessary “when a finding of a particular fact relevant to sentencing
dramatically alters the sentencing options of the court to the disadvantage of the

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defendant, United States v. Mergerson, 4 F.3d 337, 343 (5th Cir. 1993), we have
never actually adopted this “tail wags the dog” doctrine, see id. at 344; accord
United States v. Harper, 448 F.3d 732, 734 n.1 (5th Cir. 2006). But even if we
were to assume, arguendo, that the doctrine exists in this circuit, we would not
apply it here. Even without any enhancements for intended or actual loss,
Ramirez still faced a sentence of two to three years; Ramirez eventually was
sentenced to the statutory maximum of five years’ imprisonment. Thus, though
the intended loss calculation led to a much larger Guidelines range, the
statutory maximum term of imprisonment capped the sentence that Ramirez
faced. As such, we cannot say that the increase from a sentence of two to three
years to a five year sentence was so dramatic as to require a higher standard of
proof. See Mergerson, 4 F.3d at 344 (no higher standard of proof required for
increase in recommended sentence from 30 years to life to mandatory life
imprisonment); United States v. Carreon, 11 F.3d 1225, 1240 (5th Cir. 1994) (no
higher standard of proof required for increase in recommended sentence from
63–78 months’ imprisonment to 235 months’ imprisonment).
      Further, we note that the PSR explained, in detail, the basis for both its
intended and actual loss calculations. Given the nature of the conspiracy here
and the detail of the PSR, we cannot say that the enhancements based on the
PSR’s loss calculations were erroneous. See United States v. Harris, 597 F.3d
242, 259 (5th Cir. 2010) (“[A] sentencing court may infer intent to inflict a loss
equal to the face value of property [including credit card limits] based on the fact
that the defendant recklessly jeopardized that property during the commission
of his crime. That a defendant recklessly jeopardized property that he obtained
fraudulently may be reasonably supported by a finding that he transferred it to
a third party whom he did not control.” (citation omitted)). In sum, we find no
error in Ramirez’s sentence.
                            B. Cheryl Kay Brown

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      Brown’s sole issue on appeal is whether the district court erred in allowing
testimony about her and her coconspirators’ drug use.        Specifically, Brown
argues that the testimony concerning drug use was “extrinsic” to the stolen mail
conspiracy because the mail theft could have occurred without drug use. As
such, she urges that this testimony improperly characterized her as a “drug
dealer and a person who traded stolen property for drugs” and was thus unduly
prejudicial. We find no error on this issue.
      “To determine whether ‘other acts’ evidence was erroneously admitted, we
must first decide whether the evidence was intrinsic or extrinsic.” United States
v. Rice, 607 F.3d 133, 141 (5th Cir. 2010). “Other act evidence is intrinsic when
the evidence of the other act and the evidence of the crime charged are
inextricably intertwined or both acts are part of a single criminal episode or the
other acts were necessary preliminaries to the crime charged.” Id. (quotation
marks omitted). “Intrinsic evidence is admissible to complete the story of the
crime by proving the immediate context of events in time and place, and to
evaluate all of the circumstances under which the defendant acted.”          Id.
“Intrinsic evidence does not implicate [Federal Rule of Evidence] 404(b), and
consideration of its admissibility pursuant to that rule is unnecessary.” Id.
(citation, alterations, and quotation marks omitted).
      Here, the Government’s presentation of drug use evidence helped “paint
the picture,” id., of the relationship between the coconspirators and the
objectives of the conspiracy by showing that the conspiracy’s impetus was the
desire to obtain funds to purchase drugs. See, e.g., id. (presentation of previous
robbery attempts helped the Government to show the conspiracy’s objectives and
mode of operations); United States v. Royal, 972 F.2d 643, 647–48 (5th Cir. 1992)
(evidence of prior drug convictions not extrinsic in a drug conspiracy conviction
because “it allowed the jury to understand the nature of the relationship
between the [coconspirators] and evaluate whether it was likely that the

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[d]efendant[s] would have conspired”). As such, the drug use evidence presented
here was “intrinsic,” and we discern no error on this issue.
                            III. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of conviction and
sentence for each defendant.
      AFFIRMED.




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