United States v. Ramirez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5826
MARINO RAMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-93-90-N)
Submitted: July 23, 1996
Decided: August 5, 1996
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Larry W. Shelton, GOLDBLATT, LIPKIN & COHEN, P.C., Norfolk,
Virginia, for Appellant. Helen F. Fahey, United States Attorney, Fer-
nando Groene, Assistant United States Attorney, Norfolk, Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marino Ramirez appeals from his jury convictions of conspiracy to
distribute and to possess with intent to distribute cocaine, in violation
of 21 U.S.C.A. § 846 (West Supp. 1996), two counts of distribution
of cocaine, and one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1) (1988). We affirm.
I.
On August 16, 1990, Detective Thomas Bishop of the Virginia
Beach Police Department obtained search warrants for three guest
rooms in the Days Inn in Virginia Beach. While Bishop was procur-
ing the warrants, Sergeant Neal Thompson established surveillance on
Room 311. He observed Appellant enter the room carrying a white
paper bag. Shortly thereafter, Appellant exited and walked to Room
322. When Room 311 was searched, the police found a white paper
bag similar to the one Thompson saw Appellant carry into the room.
The bag contained 288 grams of cocaine.
The police entered Room 322 pursuant to a search warrant in the
early morning hours of August 17, where they found Appellant, Wen-
dell Wood, and Wood's girlfriend, Marilyn Claudio. The police also
found an unloaded gun belonging to Wood under one of the beds.
At trial, Claudio testified that, in June 1990, Wood began traveling
to Virginia Beach to sell cocaine. Appellant was their supplier. Clau-
dio accompanied Wood on approximately five trips, and Appellant
traveled with them on several occasions.
Claudio further testified that on July 10 and August 10, she, Wood
and Appellant traveled to Virginia Beach and rented rooms under
false names. Wood then sold the cocaine to his customers. On or
about August 13, Appellant and Claudio left Wood in Virginia Beach
and flew to New Jersey for more cocaine. On August 15, they trans-
ported a kilogram of cocaine back to Virginia Beach.
2
The jury convicted Appellant of all counts, and the district court
sentenced him to 151 months imprisonment.
II.
Appellant challenges the sufficiency of the evidence supporting his
convictions. In applying the familiar sufficiency of the evidence stan-
dard, we "construe the evidence in the light most favorable to the gov-
ernment, assuming its credibility, drawing all favorable inferences
from it, and taking into account all the evidence, however adduced."
United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991). To sustain
a conspiracy conviction, the government must prove beyond a reason-
able doubt that a defendant knew of the existence of, and voluntarily
participated in, the conspiracy. See United States v. Morsley, 64 F.3d
907, 919 (4th Cir. 1995), cert. denied, 64 U.S.L.W. 3467 (U.S. Jan.
8, 1996) (No. 95-6942).
Claudio's testimony clearly established that Appellant conspired to
distribute cocaine. Appellant argues that Claudio was not a credible
witness, but questions of witness credibility are the province of the
jury, not of the court of appeals. United States v. Reavis, 48 F.3d 763,
771 (4th Cir.), cert. denied, 63 U.S.L.W. 3890 (U.S. June 19, 1995)
(No. 94-9316).
Sufficient evidence was also presented to affirm Appellant's sub-
stantive distribution counts arising out of transactions on July 10 and
August 10. The term "distribute" in § 841(a)(1) is defined quite
broadly. United States v. Luster, 896 F.2d 1122, 1127 (8th Cir. 1990).
The government need not show that Appellant physically transferred
the cocaine if it can show "other acts in furtherance of the transfer."
United States v. Crockett, 813 F.2d 1310, 1316 (4th Cir.), cert.
denied, 484 U.S. 834 (1987). No evidence was presented that Appel-
lant personally transferred the cocaine. However, as discussed above,
a reasonable jury could conclude that Appellant provided cocaine to
Wood to sell to his customers in Virginia Beach and that Appellant
accompanied Wood to oversee the transactions. A jury could reason-
ably view these acts as taken in furtherance of the transfer, providing
sufficient evidence to support these substantive convictions.
Finally, the evidence was sufficient to convict Appellant of posses-
sion with intent to distribute the cocaine found in Room 311. Based
3
on Thompson's testimony, the jury could easily have found that
Appellant placed the bag containing the cocaine in Room 311. In
addition, given the large amount of cocaine that was recovered, the
jury could have properly inferred Appellant's intent that it be distrib-
uted. United States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992).
III.
Appellant next claims that he received ineffective assistance of
counsel when his attorney failed to move for a judgment of acquittal.
A claim of ineffective assistance of counsel should be raised by
motion under 28 U.S.C. § 2255 (1988), as amended by Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1217, unless it "conclusively appears" from the record that
defense counsel did not provide effective representation. United
States v. Fisher, 477 F.2d 300, 302 (4th Cir. 1973) (citing United
States v. Mandello, 426 F.2d 1021, 1023 (4th Cir. 1970)). Because the
record before us fails to establish conclusively trial counsel's ineffec-
tive assistance, we decline to review this issue at this time.
IV.
Finally, we reject Appellant's contention that the district court
erred by applying a two-level sentence enhancement for possession of
a firearm pursuant to United States Sentencing Commission,
Guidelines Manual, § 2D1.1(b)(1) (Nov. 1994). Appellant contends
that the gun belonged to Wood and there was no evidence that Appel-
lant even knew of its existence. We note, however, that a defendant
"possesses" a firearm for purposes of § 2D1.1(b)(1) if the weapon was
merely "present," unless it is clearly improbable that the weapon was
connected with the offense. United States v. Hunter, 19 F.3d 895, 896
(4th Cir. 1994) (enhancement affirmed where defendant could reason-
ably have foreseen that a firearm would be present during drug trans-
action). As Appellant notes, Hunter controls this issue, and we
decline Appellant's invitation to reconsider Hunter's holding.
Because the district court's determination that a firearm was present
so as to justify an enhancement was not clearly erroneous, see United
States v. Apple, 915 F.2d 899, 914 (4th Cir. 1990), we affirm the
enhancement.
4
V.
Accordingly, we affirm the conviction and sentence imposed by the
district court. 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
5