IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21048
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARMANDO RAMIREZ, JR.; ARMANDO RAMIREZ, SR.,
Defendants-Appellants.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-72-2
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January 31, 2003
Before BARKSDALE, DEMOSS and BENAVIDES, CIRCUIT JUDGES.
PER CURIAM:*
Armando Ramirez, Jr., and Armando Ramirez, Sr., appeal from
their convictions and sentences for conspiracy to possess with
intent to distribute five kilograms or more of cocaine and aiding
and abetting the possession with intent to distribute five
kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and
846 and 18 U.S.C. § 2. Both defendants argue that the district
court erred by enhancing their sentences for leadership roles under
*
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that this opinion should not be published and is not precedent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.
U.S.S.G. § 3B1.1. We conclude based on the trial testimony and
information in the presentence reports that it was not implausible
that each defendant at some point directed the actions of co-
conspirator Eloy Garcia and that it was not clearly erroneous for
the district court to apply the enhancements for leadership roles.
See United States v. Cooper, 274 F.3d 230, 247 (5th Cir. 2001);
United States v. Ocana, 204 F.3d 585, 592 & n.7 (5th Cir. 2000);
United States v. Valencia, 44 F.3d 269, 272 (5th Cir. 1995).
The defendants also argue that the district court incorrectly
attributed drug quantities to them. We conclude that, at a
minimum, the evidence and testimony at trial was sufficient to hold
each defendant responsible under relevant conduct for the drug
amounts involved in the June 1999 and January 2000 loads, and
therefore the district court did not clearly err in assigning the
highest base offense level to each defendant. See United States v.
Buchanan, 70 F.3d 818, 829 (5th Cir. 1995); see also U.S.S.G. §§
2D1.1, 1B1.3.
The defendants next argue that the Government engaged in
prosecutorial misconduct during closing arguments by improperly
vouching for the credibility of cooperating witnesses and by
misstating the elements of the offense. The defendants concede
that no objection was made in the district court to the alleged
misconduct, and therefore our review is for plain error. See
United States v. Washington, 44 F.3d 1271, 1278 (5th Cir. 1995);
see also FED. R. CRIM. P. 52(b). We conclude that the defendants
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have not shown plain error in the prosecutor's comments concerning
the truthfulness of the witnesses or his comments asking the jury
to believe that a telephone conversation involved a discussion of
cocaine. See Washington, 44 F.3d at 1278. They have also not
shown impropriety in the prosecutor's comments allegedly shifting
the burden of proof to them. Moreover, even if the comment was
improper, there is no showing that the comment affected their
substantial rights given that the district court correctly
instructed the jury on burden of proof. See Zafiro v. United
States, 506 U.S. 534, 540 (1993)("'juries are presumed to follow
their instructions'")(citation omitted). Likewise, the defendants
have not shown that the prosecutor misstated the elements of the
offense by failing to stress that the jury had to find a drug
quantity in order to convict. Further, the district court properly
instructed the jury on this element of the offense, and there is no
plain error.
Lastly, the defendants rely on Apprendi v. New Jersey, 530
U.S. 466 (2000), to argue that their sentences were improper
because the district court, rather than the jury, made
determinations under the sentencing guidelines concerning their
leadership roles and the specific drug quantities. The defendants
concede that the district court's determinations did not increase
their sentences beyond the statutory maximum. We have held that
guideline factors that enhance a sentence within the statutory
sentencing range do not implicate Apprendi. See United States v.
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Keith, 230 F.3d 784, 787 (5th Cir. 2000). We are bound by this
precedent. United States v. Taylor, 933 F.2d 307, 313 (5th Cir.
1991).
AFFIRMED.
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