United States v. Alfaro-Ramirez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4028
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALTER OSMARO ALFARO-RAMIREZ, a/k/a Luis
Antonio Suarez-Delgado,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-03-268)
Submitted: June 10, 2005 Decided: July 18, 2005
Before NIEMEYER, WILLIAMS, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Elizabeth Horton, HORTON AND GSTEIGER, P.L.L.C., Winston-Salem,
North Carolina, for Appellant. Angela Hewlett Miller, Randall
Stuart Galyon, Assistant United States Attorneys, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Walter Osmaro Alfaro-Ramirez appeals his conviction for
conspiracy to possess with intent to distribute marijuana and his
resulting sixty-month sentence. On appeal, Alfaro-Ramirez’s
counsel filed an Anders* brief, concluding that there were no
meritorious issues for appeal but addressing whether the district
court correctly found that Alfaro-Ramirez was not entitled to the
safety valve exception. Alfaro-Ramirez further addressed this
issue in a pro se supplemental brief. At this court’s request,
counsel filed a supplemental Anders brief, opining that United
States v. Booker, 125 S. Ct. 738 (2005), was inapplicable to
Alfaro-Ramirez’s sentence.
Under the “safety valve” exception to statutory minimum
sentences, a defendant convicted of a drug crime may be given a
more lenient sentence within the otherwise applicable guidelines
range if, among other things, the defendant “provided to the
Government all information and evidence the defendant has
concerning the offense or offenses that were part of the same
course of conduct or of a common scheme or plan.” 18 U.S.C.
§ 3553(f)(5) (2000); U.S. Sentencing Guidelines Manual
§ 5C1.2(a)(5) (2003). To satisfy § 3553(f)(5), Alfaro-Ramirez was
required to disclose all the information he possessed about his
involvement in the crime and his chain of distribution, including
*
Anders v. California, 386 U.S. 738 (1967).
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the identities and participation of others. See United States v.
Romo, 81 F.3d 84, 85 (8th Cir. 1996). The district court’s finding
that Alfaro-Ramirez did not satisfy the statutory requirements is
reviewed for clear error. See United States v. Daughtrey, 874 F.2d
213, 217 (4th Cir. 1989).
It is undisputed that Alfaro-Ramirez failed to describe
the whole story of the conspiracy and refused to detail the roles
and identities of others involved. The fact that he was willing to
describe his own role was insufficient to satisfy the statutory
requirements. Thus, the district court’s finding was not clearly
erroneous.
Next, citing Booker, Alfaro-Ramirez argues in his pro se
supplemental brief that he was entitled to a jury determination of
whether he satisfied the safety valve exception. His attorney
raises the issue of whether Alfaro-Ramirez’s sentence violated the
Sixth Amendment. Because Alfaro-Ramirez did not raise either issue
in the district court, these claims are reviewed for plain error.
Fed. R. Crim. P. 52(b); United States v. Hughes, 401 F.3d 540, 547
(4th Cir. 2005).
To meet this plain error standard: (1) there must be an
error; (2) the error must be plain; and (3) the error must affect
substantial rights. United States v. Olano, 507 U.S. 725, 732-34
(1993). If the three elements of the plain error standard are met,
the Court may exercise its discretion to notice error only “when
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failure to do so would result in a miscarriage of justice, such as
when the defendant is actually innocent or the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Hughes, 401 F.3d at 555.
In Booker, the Supreme Court held that the mandatory
manner in which the federal sentencing guidelines required courts
to impose sentencing enhancements based on facts found by the court
by a preponderance of the evidence violated the Sixth Amendment.
125 S. Ct. at 746, 750. Thus, the district court erred in
sentencing Alfaro-Ramirez under the mandatory guidelines scheme.
See United States v. White, 405 F.3d 208, 216-17 (4th Cir. 2005).
That error was plain because Booker abrogated previous law of this
Circuit. Id. at 217. However, to affect substantial rights, the
sentence imposed must have been longer than what could have been
imposed based solely on the jury’s findings. Hughes, 401 F.3d at
548. Here, Alfaro-Ramirez was sentenced to the statutory mandatory
minimum. Thus, the mandatory guideline calculation had no effect
on his actual sentence, and his substantial rights were not
affected.
In addition, neither Booker nor Hughes holds that
sentencing guidelines determinations must be made by a jury.
Instead, courts are required to calculate the appropriate
guidelines range, in accordance with current practice and under a
preponderance of the evidence standard, and then consider that
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range along with other relevant factors before imposing a sentence.
Hughes, 401 F.3d at 546. Thus, there is no merit to the argument
that the safety valve issue must be decided by a jury. The
decision of whether a defendant has satisfied the statutory
requirements of the safety valve exception is properly made by a
judge both pre- and post-Booker.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Alfaro-Ramirez’s conviction and
sentence. This court requires that counsel inform his client, in
writing, of his right to petition the Supreme Court of the United
States for further review. If the client 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 the client. 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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