United States v. Irvin Ramirez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4033
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRVIN JOSUE NAVARRO RAMIREZ,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:09-cr-00153-RJC-DCK-1)
Submitted: January 5, 2012 Decided: February 3, 2012
Before SHEDD, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dianne K. McVay, JONES MCVAY FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Irvin Josue Navarro Ramirez was sentenced to eighty-
seven months’ incarceration after pleading guilty to conspiracy
to distribute and possess with intent to distribute one kilogram
or more of heroin, in violation of 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A) (2006). Ramirez’s counsel has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), in which she
states that she could identify no meritorious issues for appeal,
but requests the court to review whether the district court
properly applied an enhancement for Ramirez’s role as a manager
or supervisor. Ramirez was informed of his right to file a pro
se supplemental brief, but has not done so. The Government
declined to file a brief. Having reviewed the record, we affirm
the judgment of the district court.
A three-level enhancement for an aggravating role in
the offense is authorized “[i]f the defendant was a manager or
supervisor (but not an organizer or leader) and the criminal
activity involved five or more participants or was otherwise
extensive.” U.S. Sentencing Guidelines Manual (“USSG”)
§ 3B1.1(b) (2009). This court has explained that “the key
inquiry is whether the defendant’s role was that of an organizer
or leader of people, as opposed to that of a manager over the
property, assets, or activities of a criminal organization.”
United States v. Llamas, 599 F.3d 381, 390 (4th Cir. 2010)
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(internal quotation marks omitted). “Thus, the aggravating role
adjustment is appropriate where the evidence demonstrates that
the defendant controlled the activities of other participants or
exercised management responsibility.” Id. (internal quotation
marks omitted). The district court’s determination that a
defendant played an aggravating role in an offense is a factual
determination reviewed for clear error. United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009).
The district court found that Ramirez had stepped into
the shoes of the conspiracy’s former leader, based on telephone
conversations, surveillance that tended to show that Ramirez was
being groomed for the position, and the fact that calls from a
co-conspirator to Ramirez resulted in deliveries of heroin,
either personally or, more often, through runners. A law
enforcement agent testified that the former leader had at least
four underlings, and that Ramirez used four different runners,
including one who drove him to make deliveries. In light of
this evidence, we conclude that the district court’s application
of an aggravating role enhancement was not clearly erroneous.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court's judgment.
This court requires that counsel inform Ramirez, in writing, of
the right to petition the Supreme Court of the United States for
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further review. If Ramirez requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Ramirez. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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