United States v. Carlos Ramos-Rogel , 411 F. App'x 944 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2748
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Carlos Ramos-Rogel, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 16, 2011
Filed: February 28, 2011
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Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
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PER CURIAM.
In this direct appeal of a seventy-eight-month prison sentence for possession
with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1),
Carlos Ramos-Rogel contends the district court1 erred in denying a two-level safety
valve reduction pursuant to United States Sentencing Guidelines Manual § 5C1.2.2
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
2
Ramos-Rogel initially challenged the district court’s denial of his motion to
suppress evidence, but he has since waived consideration of that issue because he
failed to enter a conditional plea of guilt preserving the issue on appeal. See United
Upon careful review of the record, we conclude the district court did not clearly
err in determining Ramos-Rogel failed to qualify for safety valve relief. See United
States v. Aguilera, 625 F.3d 482, 488 (8th Cir. 2010) (“The defendant has the burden
to prove that he qualifies for this relief, and we review for clear error the district
court’s findings about the completeness and truthfulness of a defendant’s provision
of information.”). Ramos-Rogel told several different versions of how he obtained
methamphetamine for distribution. Law enforcement reviewed recent phone calls
made to and from Ramos-Rogel’s cell phone around the time of a controlled buy and
discovered he had called his cousin, Gerson Rivas, in between calls to the informant
who set up the controlled buy. Specifically, after the informant requested a quantity
of methamphetamine, Ramos-Rogel indicated he would check with his source;
Ramos-Rogel immediately thereafter called Rivas, and then called the informant back
and indicated he could line up the sale. In addition, the vehicle Ramos-Rogel was
driving during the transaction was registered to Rivas, and the informant indicated
he had previously purchased drugs from Rivas’s residence. Ramos-Rogel initially
denied making any calls to Rivas, and upon further questioning, he had no
explanation for the call other than to deny Rivas took part in the transaction.
Based on the testimony provided at sentencing, the district court could
reasonably infer Ramos-Rogel had not “truthfully provided . . . all information and
evidence” concerning the crime. 18 U.S.C. § 3553(f)(5); see also United States v.
Nguyen, 608 F.3d 368, 378 (8th Cir. 2010) (“‘In making its assessment of the
truthfulness of a safety valve proffer, the district court is entitled to draw reasonable
inferences from the evidence.’”) (quoting United States v. Soto, 448 F.3d 993, 996
(8th Cir. 2006)). “To qualify for the safety valve exception, a defendant must
disclose all information about his involvement in the crime, including the identities
and participation of others.” United States v. Alvarado, 615 F.3d 916, 923 (8th Cir.
States v. Limley, 510 F.3d 825, 827 (8th Cir. 2007) (“A valid guilty plea is an
admission of guilt that waives all non-jurisdictional defects and defenses.”).
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2010); see also United States v. Guerra-Cabrera, 477 F.3d 1021, 1025 (8th Cir. 2007)
(“[A defendant] must disclose whatever information he has about his offense, and the
district court can hold him accountable for revealing the identities and participation
of others involved in the offense if it could reasonably be expected he would have
such information.”). Given the inconsistencies in Ramos-Rogel’s stories and the
reasonable inferences that may be drawn from the evidence regarding Rivas’s
involvement in the offense, the district court’s finding was not clearly erroneous.
Accordingly, we affirm the district court’s sentence.
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