United States v. Gasper Ramirez

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4655
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GASPER RAMIREZ, a/k/a Casper,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. David C. Norton, District Judge. (2:19-cr-00060-DCN-1)
Submitted: February 16, 2023 Decided: June 9, 2023
Before GREGORY, Chief Judge, and DIAZ and THACKER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
ON BRIEF: William W. Watkins, Sr., WILLIAM W. WATKINS, PA, Columbia, South
Carolina, for Appellant. Jamie L. Schoen, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Gasper Ramirez pled guilty, pursuant to a Fed. R. Crim. P. 11(c)(1)(C) plea
agreement, to conspiracy to possess with the intent to distribute and distribute one kilogram
or more of a mixture or substance containing a detectable amount of heroin and 500 grams
or more of a mixture or substance containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846; possession with the intent to
distribute 100 grams or more of a mixture or substance containing a detectable amount of
heroin and 500 grams or more of a mixture or substance containing a detectable amount of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)-(B); and conspiracy to
commit money laundering, in violation of 18 U.S.C. § 1956(h). After reviewing the
presentence report, Ramirez objected to the two-level firearm enhancement and the four-
level leadership enhancement. See U.S. Sentencing Guidelines Manual §§ 2D1.1(b)(1),
3B1.1(a) (2018). The district court overruled Ramirez’s objections and sentenced him to
the stipulated sentence of 180 months’ imprisonment.
Ramirez’s counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738(1967), stating that there are no meritorious grounds for appeal but questioning whether
the district court clearly erred in applying the firearm and leadership enhancements. *
Ramirez was advised of his right to file a pro se supplemental brief, but he has not done
*
Counsel also questions whether Ramirez’s appellate waiver is valid. We need not
consider this issue because the Government has not sought to enforce the waiver, and we
decline to enforce such waivers sua sponte. See United States v. Jones, 667 F.3d 477, 486
(4th Cir. 2012).
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so. The Government has declined to file a brief. We affirm but remand for correction of
a clerical error.
We review a criminal sentence for reasonableness “under a deferential abuse-of-
discretion standard.” United States v. Williams, 5 F.4th 500, 505 (4th Cir.), cert. denied,
142 S. Ct. 625 (2021). In so doing, “we must first ensure that the district court committed
no significant procedural error, such as improperly calculating the Guidelines range.” Id.(internal quotation marks omitted).
Before assessing whether the district court properly applied the challenged
enhancements, we conclude that the court correctly determined that the need to avoid
unwarranted sentencing disparities is not relevant to whether the facts supported the
enhancements in Ramirez’s case. In any event, “a sentence is not unreasonable under
[18 U.S.C.] § 3553(a)(6) merely because it creates a disparity with a co-defendant’s
sentence.” United States v. Gillespie, 27 F.4th 934, 945 (4th Cir.) (internal quotation marks
omitted), cert. denied, 143 S. Ct. 164 (2022). Rather, “the kind of disparity with which
§ 3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than
among defendants to a single case,” United States v. Pyles, 482 F.3d 282, 290
(4th Cir. 2007) (internal quotation marks omitted), vacated on other grounds, 552 U.S.
1089 (2008).
“In assessing [a defendant’s] challenge to the district court’s Guidelines application,
we review factual findings for clear error and legal conclusions de novo.” United States v.
Boyd, 55 F.4th 272, 276 (4th Cir. 2022) (internal quotation marks omitted). “Clear error
exists when after reviewing all the evidence, we are left with the definite and firm
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conviction that a mistake has been committed.” United States v. Legins, 34 F.4th 304, 325
(4th Cir.) (internal quotation marks omitted), cert. denied, 143 S. Ct. 266 (2022).
Turning to the firearm enhancement, the Guidelines instruct that a defendant’s base
offense level should be increased by two “[i]f a dangerous weapon (including a firearm)
was possessed” in connection with the drug offense. USSG § 2D1.1(b)(1). The
commentary explains that the firearm enhancement “reflects the increased danger of
violence when drug traffickers possess weapons” and “should be applied if the weapon was
present, unless it is clearly improbable that the weapon was connected with the offense.”
USSG § 2D1.1 cmt. n.11(A). And “we have held that the enhancement is proper when the
weapon was possessed in connection with drug activity that was part of the same course of
conduct or common scheme as the offense of conviction.” United States v. Mondragon,
860 F.3d 227, 231 (4th Cir. 2017) (cleaned up).
“The government bears the initial burden of proving, by a preponderance of the
evidence, that the weapon was possessed in connection with the relevant illegal drug
activity.” Id. The government “need not prove precisely concurrent acts, such as a gun in
hand while in the act of storing drugs or drugs in hand while in the act of retrieving a gun.”
Id. (cleaned up). Instead, “the government need prove only that the weapon was present,
which it may do by establishing a temporal and spatial relation linking the weapon, the
drug trafficking activity, and the defendant.” Id. (internal quotation marks omitted). If the
government meets this burden, “the sentencing court presumes that the weapon was
possessed in connection with the relevant drug activity and applies the enhancement, unless
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the defendant rebuts the presumption by showing that such a connection was clearly
improbable.” Id. (internal quotation marks omitted).
We conclude that the government established the necessary temporal and spatial
proximity linking the firearm to Ramirez and the drug-trafficking conspiracy and that
Ramirez did not demonstrate that it was clearly improbable that the firearm was possessed
in connection with the conspiracy. Accordingly, the district court did not clearly err in
applying the firearm enhancement.
As for the leadership enhancement, the Guidelines instruct that a defendant’s
offense level should be increased by four if he “was an organizer or leader of a criminal
activity that involved five or more participants or was otherwise extensive.” USSG
§ 3B1.1(a). “To qualify for an adjustment under this section, the defendant must have been
the organizer, leader, manager, or supervisor of one or more other participants.” USSG
§ 3B1.1 cmt. n.2. The district court considers several factors in determining whether a role
enhancement should be applied, including:
the exercise of decision making authority, the nature of participation in the
commission of the offense, the recruitment of accomplices, the claimed right
to a larger share of the fruits of the crime, the degree of participation in
planning or organizing the offense, the nature and scope of the illegal
activity, and the degree of control and authority exercised over others.
USSG § 3B1.1 cmt. n.4; see United States v. Thorson, 633 F.3d 312, 318-20 (4th Cir. 2011)
(discussing and affirming leadership enhancement).
There is no dispute that the conspiracy involved five or more participants. And we
conclude that there was ample evidence that Ramirez served as a leader or organizer of the
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conspiracy. Accordingly, the district court did not clearly err in applying the leadership
enhancement.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
Our review, however, revealed that the district court’s recommendations to the Bureau of
Prisons announced at sentencing do not match the recommendations in the written
judgment. Specifically, the court omitted from the written judgment its recommendation
that Ramirez be allowed to participate in programming “as soon as possible” and its
recommendation that Ramirez “be given favorable consideration at the end of his sentence
for the maximum time release, assuming he qualifies at that time.” Transcript of
Sentencing at 30, United States v. Ramirez, No. 2:19-cr-00060-DCN-1 (D.S.C.
Jan. 13, 2022), ECF No. 1270. Accordingly, we remand so that the district court may
include in its written judgment all of the recommendations it pronounced at sentencing.
See Fed. R. Crim. P. 36; United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020) (“[I]f
a conflict arises between the orally pronounced sentence and the written judgment, then
the oral sentence controls.”).
This court requires that counsel inform Ramirez, in writing, of the right to petition
the Supreme Court of the United States for 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
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the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED AND REMANDED
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