United States v. Velasco , 543 F. App'x 759 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 22, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
No. 13-5009
Plaintiff - Appellee,
(D.C. No. 4:12-CR-00132-GKF-1)
v. (N.D. Oklahoma)
RAMON VELASCO, a/k/a/ Gordo, a/k/a
Ramone Velasco,
Defendant - Appellant.
ORDER AND JUDGMENT*
Before HARTZ, HOLMES, and BACHARACH, Circuit Judges.
Defendant Ramon Velasco was convicted of conspiracy to distribute
methamphetamine and possession with intent to distribute methamphetamine. The
United States District Court for the Northern District of Oklahoma sentenced him to 188
months in prison. He appeals his sentence on two grounds, asserting that there was
* After examining appellant=s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
insufficient evidence of the drug quantity used to compute his offense level under the
United States Sentencing Guidelines, and that the prosecution’s failure to correct
a codefendant’s false trial testimony about his criminal history violated Defendant’s due-
process rights at sentencing.1 We conclude that there was sufficient evidence and that
Defendant’s due-process rights were not violated. Exercising jurisdiction under
28 U.S.C. § 1291, we affirm.
I. SENTENCE CALCULATION
Defendant and five others—Roberto Urbina, Juan Escalera, Jimmy Luna, Lisa
Fernandez, and Jeremy Haar—conspired to distribute methamphetamine. Defendant was
the leader and supplier; Urbina received methamphetamine from Defendant and gave it to
Luna, who sold to retail distributors Fernandez and Haar; Escalera transported and stored
money and drugs.
The following is undisputed: Fernandez and Haar were arrested with 31.1 grams
of methamphetamine (an ounce is 28.35 grams). Fernandez said that she obtained at least
a quarter of an ounce from Luna at least 50 times, and Haar said that he obtained
methamphetamine from Luna about 25 times. Luna was arrested with 13.42 grams of
methamphetamine and 38 grams of cocaine base. Upon his arrest he said that he had
been selling methamphetamine for Urbina for two months and had sold at least
16 pounds. Urbina was arrested with 359.8 grams of methamphetamine. Escalera, who
1
Defendant concedes, and we agree, that Defendant would not be entitled to a
new trial because he cannot show prejudice from the allegedly false testimony.
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was arrested with .42 grams of methamphetamine, reported that Defendant once had him
store half a kilogram of cocaine, and on another occasion had him transport half a
kilogram.
Based on this account, the PSR attributed to Defendant 18 pounds (8.1 kilograms)
of methamphetamine and one kilogram of cocaine, or a total marijuana equivalent of
16,400 kilograms, leading to a base offense level of 36 (the offense level for 10,000 to
30,000 kilograms of marijuana, see U.S.S.G. § 2D1.1(c)(2)). It added two levels for
Defendant’s role as an organizer of the conspiracy, see id. § 3B1.1(c), raising his total
offense level to 38. With a criminal-history score of zero, Defendant was in criminal-
history category I. His guideline sentencing range was therefore 235 to 293 months’
imprisonment.
Before sentencing, Defendant moved for a downward variance, asserting, among
other things, that Luna’s statements were untrustworthy because Luna lied about his
criminal history during the trial. In support of the motion, Defendant filed a printout
of Luna’s criminal history from the Kansas Criminal Justice Information System. The
printout showed that Luna had been convicted of not just the cocaine-related offense he
admitted to at trial, but also burglary and attempted aggravated sexual battery more than
20 years earlier.
After acknowledging Luna’s convictions, the district court overruled Defendant’s
objection to the 18-pound quantity determination. It noted that the amount attributed to
Defendant was the same as the amount attributed to Urbina in his PSR, to which Urbina
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had not objected, and that the amount was based not only on Defendant’s relationship
with Luna, but also on his relationship with Urbina and Escalera. Finding the guideline
range excessive, however, the court varied downward two levels, resulting in a guideline
range of 188 to 235 months. It sentenced Defendant to 188 months, at the bottom of that
range.
II. ISSUES ON APPEAL
A. Drug Quantity
We review the district court’s factual findings regarding drug quantity for clear
error and will reverse only if a finding was without adequate factual support in the record.
See United States v. Foy, 641 F.3d 455, 468 (10th Cir. 2011). When the drugs
themselves were not seized, “the trial court may rely upon an estimate . . . so long as the
information relied upon has some basis of support in the facts of the particular case and
bears sufficient indicia of reliability.” Id. at 468–69 (internal quotation marks omitted).
There is adequate support in the record. Defendant does not challenge the
recitation of quantity in the PSR (which totals more than eight kilograms, three more than
necessary for Defendant’s offense level), except for the accuracy of Luna’s statement that
he sold at least 16 pounds of methamphetamine for Urbina. He contends that Luna’s
false testimony about his prior convictions rendered his statements unreliable. But
Luna’s statement was made to an investigating officer promptly after his arrest, when
admitting to being a substantial dealer could be damaging to him. His reliability was
further buttressed in the next few days as law enforcement corroborated other information
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that he gave to the officer, including information about Urbina and Defendant and a
future deal Urbina had planned. His assertion of quantity was also corroborated by
evidence that Urbina (and hence Defendant) were trafficking in large quantities
of methamphetamine. In particular, an investigating officer arranged (through Luna) a
deal with Urbina to buy a pound of methamphetamine. Urbina said that he would be
ready to deliver on Saturday morning. By the time they were able to schedule the deal on
Monday, Urbina had sold more than half of the pound to someone else, but he promised
that he would soon be able to get more drugs to make up the difference. Moreover,
Urbina did not object to the attribution to him in his own PSR of 8.1 kilograms of
methamphetamine. We hold that Luna’s 16-pound statement was sufficiently reliable for
sentencing purposes. See United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir. 2013)
(corroborated hearsay may be sufficiently reliable to support findings at sentencing
hearings).
Defendant also claims that “[t]he district court supported its finding with a
demonstrably incorrect reading of the record—that Mr. Urbina’s testimony regarding the
drug quantity (four or five pounds) was consistent with that of Mr. Luna (at least
16 pounds).” Aplt. Br. at 10 (internal quotation marks omitted). The district court’s
actual language was that Urbina’s “reports to law enforcement were consistent” with
Luna’s “statements . . . from the stand.” R.,Vol. 2 at 283. We do not read the court’s
words as stating that Urbina and Luna agreed in every particular, only that they agreed in
general import. We are not persuaded that the court’s findings were based on an
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inaccurate recollection of the trial testimony.
B. Napue/Brady
Defendant also asserts that his case should be remanded for resentencing under
Napue v. Illinois, 360 U.S. 264 (1959), and Brady v. Maryland, 373 U.S. 83 (1963),
because the prosecution failed to correct Luna’s false statements about his criminal
history, thereby violating Defendant’s due-process rights at sentencing. This argument
has no merit. Napue and Brady “established the principle that criminal convictions
obtained by presentation of known false evidence or by suppression of exculpatory or
impeaching evidence violates the due process guarantees of the Fourteenth Amendment.”
Douglas v. Workman, 560 F.3d 1156, 1172 (10th Cir. 2009). No due-process violation
occurs, however, if Brady material is disclosed in time for the defendant to make use of
it. See United States v. Burke, 571 F.3d 1048, 1053 (10th Cir. 2009). No violation
occurred in this case because Defendant obtained Luna’s criminal-history record before
trial, cross-examined him about it during trial, and presented the evidence to the district
court before and during the sentencing hearing.
III. CONCLUSION
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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