United States v. Esteban Ramos-Colin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13104 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 20, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 5:09-cr-00042-WTH-GRJ-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
ESTEBAN RAMOS-COLIN,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 20, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Esteban Ramos-Colin appeals his 30-month sentence after being tried and
convicted for conspiracy to transport unlawful aliens, in violation of 8 U.S.C.
§§ 1324(a)(1)(A)(v)(I) and (a)(1)(B)(i).
On appeal, Ramos-Colin argues that the district court committed a clear
error by assessing a six-level increase under U.S.S.G. § 2L1.1(b)(2)(B), which
applies if the offense involves at least 25, but not more than 99, unlawful aliens.
Specifically, he contends that the evidence the government submitted in support of
the increase was not sufficiently reliable. First, he asserts that the government
presented almost no physical evidence to corroborate a co-offender’s statement
that Ramos-Colin paid him to smuggle a total of 40 aliens. Second, Ramos-Colin
argues that his own incriminating statements were too imprecise to be considered
for purposes of the enhancement.
We review the district court’s findings of fact for clear error. United States
v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir. 2009), cert. denied, 130 S. Ct.
1012 (2009). “For a factual finding to be clearly erroneous, this court, after
reviewing all of the evidence, must be left with a definite and firm conviction that
a mistake has been committed.” United States v. Rodriguez-Lopez, 363 F.3d 1134,
1137 (11th Cir. 2004) (quotations omitted). Credibility determinations are factual
findings within the province of the district court. United States v. Villareal, 613
F.3d 1344, 1349 (11th Cir. 2010).
When the defendant has objected to the facts contained in the PSI, as
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Ramos-Colin has, it is the government’s burden to prove the disputed facts by a
preponderance of the evidence. See United States v. Martinez, 584 F.3d 1022,
1027 (11th Cir. 2009). A sentencing court may consider relevant information
“without regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Bernardine, 73
F.3d 1078, 1080-81 (11th Cir. 1996).
Under the Guidelines, a defendant is subject to a six-level increase if his
offense involved the smuggling, transporting, or harboring of at least 25, but not
more than 99, unlawful aliens. U.S.S.G. § 2L1.1(b)(2)(B). As with all level-
increase provisions, a defendant may be subject to this increase on the basis of “all
reasonably foreseeable acts . . . in furtherance of the jointly undertaken criminal
activity.” U.S.S.G. § 1B1.3(a)(1)(B). Thus, “[i]f a defendant is aware of the scope
of a conspiracy outside of his individual actions, he may be held accountable for
actions by co-conspirators even though he was not personally involved.” United
States v. De La Cruz Suarez, 601 F.3d 1202, 1221 (11th Cir. 2010), cert. denied,
131 S. Ct. 393 (2010).
Upon review of the record and consideration of the parties’ briefs, we
affirm. In the instant case, the government submitted sufficiently reliable evidence
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to support the district court’s finding that Ramos-Colin’s offense conduct involved
at least 25 unlawful aliens. First, according to the trial testimony of an agent with
Immigration Customs and Enforcement (“ICE”), Ramos-Colin admitted that there
were as many as 30 unlawful aliens waiting to be transported from the stash house
he worked out of “at any given time.” Second, a co-offender reported to a United
States Border Patrol agent that Ramos-Colin had paid him to transport 40 unlawful
aliens. Notably, the co-offender’s overall account of his relationship to Ramos-
Colin was substantially corroborated by other evidence, including Ramos-Colin’s
own testimony that he had made several payments to the co-offender as a fee for
transporting aliens. Ramos-Colin’s contrary assertions, that the government did
not meet its burden because it lacked physical evidence to corroborate the co-
offender’s statement, and that his own incriminating statements were too
imprecise, are not persuasive. Accordingly, the district court did not clearly err in
finding that Ramos-Colin’s conduct involved at least 25 unlawful aliens and
applying a six-level increase under U.S.S.G. § 2L1.1(b)(2)(B).
AFFIRMED.
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