United States v. Jorge Munoz-Ramon

United States Court of Appeals
For the Eighth Circuit
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No. 14-3489
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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jorge Munoz-Ramon

lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 13, 2015
Filed: July 6, 2015
[Unpublished]
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Before WOLLMAN, SMITH, and BENTON, Circuit Judges.
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PER CURIAM.

A jury found Jorge Munoz-Ramon guilty of one count of conspiracy to
distribute and possess with intent to distribute 500 grams or more of a mixture and
substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and
846. The district court1 sentenced him to 188 months’ imprisonment. Munoz
appeals, arguing that the district court erred in admitting certain evidence and in
imposing the sentence. We affirm.

I. Background

In early April 2013, Munoz began supplying methamphetamine to Luke Ross,
who distributed it. Munoz initially fronted Ross an ounce of methamphetamine.
After Ross proved himself to be reliable, Munoz began fronting larger quantities to
him. Ross ultimately incurred a drug debt of approximately $17,000. Munoz held
Ross’s SUV as collateral. On May 23, 2013, Ross was arrested and began
cooperating with law enforcement. Ross indicated that he had purchased
methamphetamine from Munoz in front of an apartment building located at 25th and
G Streets in Omaha, Nebraska.

Over the course of two recorded phone calls placed on May 24, 2013, Ross told
Munoz that he intended to pay twelve or thirteen thousand dollars on his debt. He
invited Munoz to retrieve the money at the hotel suite where Ross said he was
staying. Law enforcement officers outfitted Ross with a recording device, set up
audio and video surveillance in the front room of the suite, and then monitored the
transaction from the bedroom. After the two phone calls from Ross, Munoz and co-
conspirator Froilan Cuevas left the apartment located at 25th and G Streets in Ross’s
SUV and traveled to the hotel. When they arrived, Cuevas remained in the vehicle.
Munoz exited the vehicle and entered the hotel.

Munoz and Ross spoke briefly in the hotel hallway and then entered the hotel
room. Ross handed Munoz a tube sock that contained $8,000. After Munoz accepted

1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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the payment, he was arrested, handcuffed, and escorted into the bedroom for
questioning.

Omaha police officer Robert Branch interviewed Munoz. According to
Branch, he explained that Munoz was under arrest and advised Munoz of his rights
under Miranda v. Arizona, 384 U.S. 436 (1966). Branch testified that Munoz waived
his Miranda rights and thereafter told Branch that he had been involved in the
distribution of methamphetamine for about ten weeks. Munoz said that Ross was his
main customer and that he had been fronting Ross increasingly larger quantities of
methamphetamine. Munoz acknowledged that Ross owed him a significant amount
of money and that Ross had given him a vehicle as security for the drug debt.

During the post-arrest interview, Munoz said that his supplier instructed him
to rent an apartment located at 25th and G Streets. Munoz explained that he had been
to the apartment earlier that day to make a payment to his supplier’s boss. Branch
then drove Munoz to 25th and G Streets, where Munoz identified the apartment.
Officers executed a search pursuant to a warrant. They found approximately five
pounds of methamphetamine. They also found cash, digital scales, packaging
materials, bank deposit slips, a lease agreement in Munoz’s name, and drug ledgers
recorded in three notebooks.

A superseding indictment charged Munoz with the conspiracy count set forth
above. Munoz moved to suppress his post-arrest statements, arguing that he had not
waived his Miranda rights. Following an evidentiary hearing during which Branch
and Munoz testified, a magistrate judge2 recommended denying the motion to
suppress. The magistrate judge found that Branch was credible and that Munoz was
not, that Branch had advised Munoz of his rights, and that Munoz’s post-arrest

2
The Honorable Thomas D. Thalken, United States Magistrate Judge for the
District of Nebraska.

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statements were made voluntarily. The district court adopted the magistrate judge’s
recommendation and denied the motion to suppress.

The case proceeded to trial. Branch, Ross, and Cuevas testified against Munoz.
Their trial testimony serves as the basis for the factual background set forth above.
As relevant to this appeal, three notebooks that were found in the apartment were
entered into evidence. Branch testified that the notebooks contained drug ledgers.
Munoz did not object to the admission of the notebooks when they were offered.
After the government rested, however, Munoz objected and moved to strike. The
district court overruled the objection and denied the motion. The jury returned a
guilty verdict and found that the conspiracy involved 500 grams or more of a mixture
and substance containing methamphetamine.

A presentence investigation report (PSR) was prepared. The PSR attributed to
Munoz the methamphetamine that was found in the apartment. It determined that
Munoz’s total offense level was 38, that his criminal history category was I, and that
his advisory sentencing range under the U.S. Sentencing Guidelines Manual
(U.S.S.G. or Guidelines) was 235 to 293 months’ imprisonment. The PSR
recommended a two-level reduction to his total offense level, based on a proposed
amendment to the drug-quantity table. If granted, the reduction would lower
Munoz’s advisory Guidelines sentencing range to 188 to 235 months’ imprisonment.

Munoz objected to the PSR’s drug-quantity finding and to its exclusion of a
two-point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
The district court overruled the objections. It granted the two-level reduction
recommended by the PSR, denied Munoz’s request for a downward variance from the
advisory Guidelines sentencing range, and imposed the 188-month sentence described
above.

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 II. Discussion

A. Denial of Motion To Suppress Evidence

Maintaining that he was not advised of his Miranda rights, Munoz first argues
that the district court erred in denying the motion to suppress his post-arrest
statements. Branch testified, however, that he had read Munoz the Miranda rights
from the Omaha Police Department rights advisory form, reciting each right
individually and pausing to ask whether Munoz understood. Branch testified that he
wrote down each of Munoz’s responses on the form, but that he did not ask Munoz
to sign or initial the form. The form was entered into evidence. Munoz argues that
we should view Branch’s testimony with skepticism because Munoz did not sign the
form and because Branch did not record their post-arrest interaction despite the
availability of recording devices.

Munoz has not shown that the district court clearly erred in finding Branch
credible. See United States v. Wright, 739 F.3d 1160, 1166 (8th Cir. 2014)
(reviewing for clear error a district court’s credibility determination). We give great
deference to the district court’s credibility determinations and have said that those
determinations are “virtually unreviewable on appeal.” Id. at 1167 (quoting United
States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995)). “A district court’s decision to
credit a witness’s testimony . . . can almost never be a clear error unless there is
extrinsic evidence that contradicts the witness’s story or the story is so internally
inconsistent or implausible on its face that a reasonable factfinder would not credit
it.” Id. (quoting Heath, 58 F.3d at 1275). Munoz has introduced no contradictory
extrinsic evidence, and Branch’s testimony was neither internally inconsistent nor
implausible. Although Branch did not ask Munoz to sign the form, he testified that
he had read the Miranda rights to Munoz and that Munoz had indicated that he
understood each right. We discern no clear error in the district court’s determination
that Branch was credible and that he had informed Munoz of his Miranda rights.

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 B. Admission of the Notebooks

Munoz next argues that the district court erred in admitting the three notebooks
that were found in the apartment. Branch described the notebooks and explained to
the jury that drug dealers typically use ledgers for accounting, “to document how
much money is owed or how much methamphetamine, whatever type of drug it is, is
out and what type of money is owed and by who[m].” Branch explained that the
information was organized in columns, showing “how much money was owed for the
methamphetamine that had been provided.” Some of the information contained in the
notebooks was written in Spanish, including the word “pagado.” Branch testified that
“pagado” means “paid.” As mentioned above, the notebooks were received into
evidence without objection, and only after the government rested did Munoz move
to strike them.

Munoz contends that the notebooks may have confused the jury because some
of the information recorded therein was in Spanish and was not translated to English.
“Although we ordinarily review a district court’s decision to admit evidence for abuse
of discretion, where a party has failed to make a timely objection, we will review only
for plain error.” United States v. Shores, 700 F.3d 366, 370 (8th Cir. 2012). Munoz
did not object when the government offered the notebooks into evidence. Because
he did not object “at the earliest possible opportunity after the ground of objection
be[came] apparent,” we review the admission of the notebooks for plain error. Id.
(alteration in original) (quoting Terrell v. Poland, 744 F.2d 637, 639 (8th Cir. 1984)
(per curiam)).

We find no error—much less plain error—in the district court’s decision to
admit the notebooks. Branch explained that the notebooks included drug ledgers and
that such ledgers are used to track drug quantities and payments. The probative value
of the notebooks was not necessarily the words written therein, but rather that the
notebooks were formatted as ledgers and that ledgers are used for accounting

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purposes within drug conspiracies. Munoz’s contention that the notebooks’
“untranslated foreign material” somehow tainted the jury’s verdict is unpersuasive.
The district court did not plainly err in finding that the probative value of the
notebooks outweighed any danger of unfair prejudice.

C. Challenges to the Sentence

Munoz first argues that the district court erred when it attributed to him the
methamphetamine found in the apartment. “When calculating drug quantity in the
context of a narcotics trafficking conspiracy, the sentencing court may consider all
transactions known or reasonably foreseeable to the defendant that were made in
furtherance of the conspiracy.” United States v. Yellow Horse, 774 F.3d 493, 496
(8th Cir. 2014) (quoting United States v. Whirlwind Soldier, 499 F.3d 862, 872 (8th
Cir. 2007)). In light of the earlier-described evidence, we find no clear error in the
district court’s determination that Munoz either knew of or reasonably could have
foreseen the methamphetamine located in his apartment. Id. (reviewing for clear error
the district court’s drug-quantity finding).

Munoz next argues that the district court erred in denying his request for a
reduction for acceptance of responsibility. The adjustment, however, is not intended
to apply to a defendant like Munoz “who puts the government to its burden of proof
at trial by denying the essential factual elements of guilt, is convicted, and only then
admits guilt and expresses remorse.” U.S.S.G. § 3E1.1 cmt. n.2. The district court
did not clearly err in finding that Munoz had not accepted responsibility. See United
States v. Daniels, 625 F.3d 529, 534 (8th Cir. 2010) (reviewing for clear error the
district court’s finding that the defendant had not accepted responsibility).

Finally, we conclude that the district court carefully considered the sentencing
factors set forth in 18 U.S.C. § 3553(a), properly explained its rationale for denying
a downward variance, and imposed a substantively reasonable sentence. Gall v.

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United States, 552 U.S. 38, 51 (2007) (holding that an appellate court may apply a
presumption of reasonableness to a sentence within the advisory Guidelines
sentencing range); cf. United States v. Gonzalez, 573 F.3d 600, 608 (8th Cir. 2009)
(upholding the denial of a downward variance).

III. Conclusion

The judgment is affirmed.
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