United States v. Jacinto Bracmort , 499 F. App'x 261 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4318
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACINTO BRACMORT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00249-DKC-6)
Submitted: November 27, 2012 Decided: December 13, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joshua R. Treem, Emily L. Levenson, SCHULMAN, TREEM & GILDEN,
P.A., Baltimore, Maryland, for Appellant. Rod J. Rosenstein,
United States Attorney, Adam K. Ake, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In August 2011, a jury convicted Jacinto Bracmort of
conspiracy to distribute and to possess with intent to
distribute cocaine base and phencyclidine (“PCP”), in violation
of 21 U.S.C. §§ 841, 846 (2006). Bracmort was sentenced to 120
months’ imprisonment and five years’ supervised release. In
this appeal, Bracmort assigns error to the district court’s
denial of a requested jury instruction and the court’s failure
to make specific factual findings relevant to the drug
quantities attributable to him for sentencing purposes. For the
reasons that follow, we affirm the judgment.
In his challenge to his conviction, Bracmort argues
the district court abused its discretion in denying his request
for a jury instruction on multiple conspiracies. “We review the
district court’s decision to give or refuse to give a jury
instruction for abuse of discretion.” United States v. Sarwari,
669 F.3d 401, 410-11 (4th Cir. 2012) (internal quotation marks
omitted).
A district court will be reversed for declining to
give an instruction proposed by a party only when the
requested instruction (1) was correct; (2) was not
substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so
important, that failure to give the requested
instruction seriously impaired that party’s ability to
make its case.
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Noel v. Artson, 641 F.3d 580, 586 (4th Cir.) (internal quotation
marks omitted), cert. denied, 132 S. Ct. 516 (2011).
“A court need only instruct on multiple conspiracies
if such an instruction is supported by the facts.” United
States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993). Thus, “[a]
multiple conspiracy instruction is not required unless the proof
at trial demonstrates that appellant[] [was] involved only in
separate conspiracies unrelated to the overall conspiracy
charged in the indictment.” United States v. Squillacote, 221
F.3d 542, 574 (4th Cir. 2000) (internal quotation marks and
emphases omitted). We have previously explained “that a single
conspiracy exists[] when the conspiracy had the same objective,
it had the same goal, the same nature, the same geographic
spread, the same results, and the same product.” United States
v. Jeffers, 570 F.3d 557, 567 (4th Cir. 2009) (internal
quotation marks and alteration omitted).
Based on our review of the record in its present form,
we conclude that the evidence adduced at trial established that
Bracmort, cooperating witness Ricky Moore, and co-defendant Rico
Toliver were part of a “loosely-knit association of members
linked only by their mutual interest in sustaining the overall
enterprise of catering to the ultimate demands of a particular
drug consumption market” — here, the area in and around Prince
George’s County, Maryland. United States v. Banks, 10 F.3d
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1044, 1054 (4th Cir. 1993). Specifically, beginning in late
2009, Moore and Toliver became partners in a common enterprise
of distributing and possessing with the intent to distribute
cocaine base and PCP. After obtaining drugs from Toliver and
co-conspirator Darrell Banks, Moore would sell these drugs to
Bracmort and others. Moore frequently and consistently supplied
PCP to Bracmort, which Bracmort would either use or sell to
others. Bracmort further aided the conspiracy by driving Moore
to drug deals and by attempting to find potential buyers and
sources. * Because the trial evidence established a single
conspiracy rather than multiple smaller ones, we hold the
district court did not abuse its discretion in denying defense
counsel’s request to instruct the jury on multiple conspiracies.
Bracmort also challenges his sentence, assigning error
to the district court’s failure to make specific factual
findings relevant to the drug quantities attributed to him for
sentencing purposes. According to Bracmort, given the jury’s
findings that less than 100 grams of PCP and less than 28 grams
of cocaine base were attributable to him, the “court had an
*
That the Government did not directly link Bracmort to
Toliver simply is not legally significant. See United States v.
Nunez, 432 F.3d 573, 578 (4th Cir. 2005) (explaining that “one
may be a member of a conspiracy without knowing its full scope,
or all its members, and without taking part in the full range of
its activities or over the whole period of its existence”
(internal quotation marks omitted)).
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obligation to engage in fact finding to determine the specific
amounts of drugs attributable to Mr. Bracmort.” (Appellant’s
Br. at 15). And because the court did not make any factual
determinations on this issue, Bracmort asserts the court lacked
a sufficient basis for using the larger drug quantities for
calculating his base offense level, thus resulting in the
imposition of an unreasonable sentence. We disagree.
Generally, this court reviews a sentence for
reasonableness, using an abuse of discretion standard of review.
Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing the
district court’s calculations under the Guidelines, “we review
the district court’s legal conclusions de novo and its factual
findings for clear error,” United States v. Manigan, 592 F.3d
621, 626 (4th Cir. 2010) (internal quotation marks omitted), and
will “find clear error only if, on the entire evidence, we are
left with the definite and firm conviction that a mistake has
been committed.” Id. at 631 (internal quotation marks and
alteration omitted). However, because he did not object to the
district court’s failure to make specific factual findings
regarding the attributable drug quantities, Bracmort’s claim is
reviewed for plain error. United States v. Blatstein, 482 F.3d
725, 731 (4th Cir. 2007).
Pursuant to Fed. R. Crim. P. 32(i)(3)(A), the
sentencing court “may accept any undisputed portion of the
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presentence report as a finding of fact.” Given Bracmort’s
undisputed failure to object to the probation officer’s
recommendation as to the drug quantities attributable to him, we
discern no error, let alone plain error, in the district court’s
reliance on the presentence report to support this factual
determination.
We further reject Bracmort’s contention that the court
was obligated to make express factual findings — even in the
absence of an objection to the presentence report — because the
attributable drug quantities were greater than those found by
the jury. The jury’s findings that Bracmort was accountable for
less than 28 grams of crack cocaine and less than 100 grams of
PCP, made under a reasonable doubt standard, were relevant to
whether Bracmort would be subject to the enhanced statutory
sentencing provisions applicable to crimes involving larger
quantities of narcotics. This is plainly distinct from the
court’s analysis of the attributable drug quantities as relevant
to sentencing. See United States v. Young, 609 F.3d 348, 357
(4th Cir. 2010) (“But beyond establishing the maximum sentence,
the jury’s drug-quantity determination placed no constraint on
the district court’s authority to find facts relevant to
sentencing.”). And as we further recognized in Young, the
sentencing court is “free to consider . . . whether the
government could establish a higher quantity under a
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preponderance of the evidence standard.” 609 F.3d at 357. To
be sure, the Young court discussed the need, in such situations,
for the sentencing court to “make relevant factual findings
based on the court’s view of the preponderance of the evidence.”
Id. However, in light of Bracmort’s failure to object to the
presentence report, the court sufficiently satisfied this duty
by adopting the drug quantity determinations set forth therein.
Cf. United States v. Davis, 679 F.3d 177, 180, 187 (4th Cir.
2012) (explaining that, where defendant objects to application
of specific Guideline, the sentencing court must make factual
findings as to disputed conduct). We thus reject this challenge
to Bracmort’s sentence.
For these reasons, we affirm the criminal 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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