UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4732
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GILBERTO RAMOS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12-cr-00224-GBL-1)
Submitted: April 29, 2014 Decided: May 8, 2014
Before KEENAN, DIAZ, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joseph D. King, KING, CAMPBELL, PORETZ, PLLC, Alexandria,
Virginia, for Appellant. Dana J. Boente, Acting United States
Attorney, Michael P. Ben’Ary, Elizabeth N. Eriksen, Nicholis D.
Mutton, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gilberto Ramos was convicted after a jury trial of
conspiracy to distribute five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2012). Prior to trial, the
Government filed an information pursuant to 21 U.S.C. § 851
(2012), to establish Ramos’ 1990 California conviction for
felony possession of marijuana for sale. The district court
imposed a statutory mandatory minimum sentence of 240 months of
imprisonment, a downward variance from the Guidelines range of
292 to 365 months. On appeal, Ramos argues that the district
court erred in failing to submit to the jury the issue of
whether he had previously been convicted of a felony drug
offense sufficient to trigger the enhanced statutory mandatory
minimum penalties and that the district court erred by applying
a four-level enhancement for his leadership role in the drug
conspiracy. Finding no error, we affirm.
In order to demonstrate that the district court erred
in failing to submit his prior felony drug offense to the jury,
Ramos relies primarily on the Supreme Court’s recent decision in
Alleyne v. United States, 133 S. Ct. 2151, 2155, 2163-64 (2013)
(holding that any fact that increases statutory mandatory
minimum is element of offense that must be submitted to jury and
found beyond a reasonable doubt). Ramos correctly acknowledges,
however, that this claim is foreclosed by Almendarez-Torres v.
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United States, 523 U.S. 224 (1998). See Alleyne, 133 S. Ct. at
2160 n.1; see also United States v. McDowell, 745 F.3d 115,
123-24 (4th Cir. 2014) (“Almendarez-Torres remains good law, and
we may not disregard it unless and until the Supreme Court holds
to the contrary.”). Thus, this claim is without merit.
Next, Ramos argues that the district court erred by
applying a four-level enhancement for his leadership role in the
drug conspiracy. A four-level enhancement for a defendant’s
role in the offense may be applied “[i]f the defendant was an
organizer or leader of a criminal activity that involved five or
more participants or was otherwise extensive.” U.S. Sentencing
Guidelines Manual (“USSG”) § 3B1.1(a) (2012). Ramos does not
contest that the criminal activity in this case involved five or
more participants or was otherwise extensive but argues that the
evidence was insufficient to establish that he exercised any
leadership role.
“[T]he aggravating role adjustment is appropriate
where the evidence demonstrates that the defendant controlled
the activities of other participants or exercised management
responsibility.” United States v. Llamas, 599 F.3d 381, 390
(4th Cir. 2010) (internal quotation marks omitted; discussing
USSG § 3B1.1(b)); see United States v. Thorson, 633 F.3d 312,
318 (4th Cir. 2011) (discussing factors used in applying
§ 3B1.1(a)). The defendant need only have exercised control
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over one participant. See USSG § 3B1.1 cmt. n.2. This court
reviews the district court’s application of a leadership
enhancement for clear error. United States v. Steffen, 741 F.3d
411, 414 (4th Cir. 2013). Our review of the record leads us to
conclude that the district court did not clearly err in finding
that the § 3B1.1(a) enhancement was supported by the testimony
describing Ramos’ actions directing others, arranging cocaine
shipments, and collecting money.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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