United States of America v. Gabriel Orlando Ramirez

United States Court of Appeals
For the Eighth Circuit
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No. 20-3421
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United States of America
Plaintiff - Appellee
v.
Gabriel Orlando Ramirez
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: October 22, 2021
Filed: December 28, 2021
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Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
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SHEPHERD, Circuit Judge.
A jury convicted Gabriel Orlando Ramirez of conspiracy to distribute a
controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court1 sentenced him to 240 months imprisonment with 5 years supervised release.
1 The Honorable Karen E. Schreier, District Judge for the District of South
Dakota.

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On appeal, Ramirez argues that there was insufficient evidence to support his
conviction and that the district court erred in its calculation of methamphetamine
attributable to him. Having jurisdiction pursuant to 28 U.S.C. § 1291 and finding
no error, we affirm.
I.
After receiving information that Ramirez was trafficking methamphetamine,
local and federal law enforcement agencies launched a two-year investigation
featuring surveillance, confidential informants, controlled drug transactions, and
wiretaps of those controlled drug transactions. On May 31, 2019, officers executed
a search warrant at Ramirez’s residence and arrested him. Following trial, a jury
convicted Ramirez and the matter proceeded to sentencing. Ramirez’s Presentence
Investigation Report (PSR) attributed a total of 21.04 kilograms of actual
methamphetamine to Ramirez, which pursuant to United States Sentencing
Guidelines (USSG) § 2D1.1, resulted in a base offense level of 38. Ramirez made
three objections to the PSR in which he contested the amount of methamphetamine
attributed to him, arguing that the amount ascertained from cooperating witness
Curtis Webb’s testimony was a “guess” and “exaggeration”; the amount derived
from confidential informant Aaron Pope’s testimony was based on “guesses and
estimates”; and for the same reasons, the total 21.04 kilograms attributed to him was
inaccurate. However, at sentencing, the district court overruled all three of
Ramirez’s objections, deeming Pope’s and Webb’s testimony credible. It calculated
Ramirez’s criminal history category as III with a Guidelines range of 292 to 365
months imprisonment before varying downward and sentencing Ramirez to 240
months imprisonment with 5 years supervised release.
II.
Ramirez first argues that there was insufficient evidence to support the jury’s
verdict. Specifically, he contends that Pope and Webb were not credible, their
testimony was “insubstantial,” and at best, the government’s evidence established a

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buyer-seller relationship between Ramirez and the two cooperating witnesses but
did not prove the existence of a conspiracy.
“We . . . ‘review the sufficiency of the evidence to sustain [this] conviction de
novo, viewing the evidence in the light most favorable to the jury’s verdict and
reversing only [where] no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.’” United States v. Ramirez-Martinez, 6 F.4th 859, 868
(8th Cir. 2021) (second and third alterations in original) (citation omitted). “To
establish that a defendant conspired to distribute drugs, the government must show
that there was an agreement to distribute drugs, that the defendant knew of the
conspiracy, and that the defendant intentionally joined the conspiracy.” United
States v. Davis, 826 F.3d 1078, 1081 (8th Cir. 2016). “An agreement to join a
conspiracy need not be explicit but may be inferred from the facts and circumstances
of the case.” United States v. Conway, 754 F.3d 580, 587 (8th Cir. 2014) (citation
omitted); see also Ramirez-Martinez, 6 F.4th at 868 (explaining “inferences from
the parties’ actions” may be sufficient to show agreement). Further, “[b]uyer-seller
relationship cases involve only evidence of a single transient sales agreement and
small amounts of drugs consistent with personal use,” whereas “[e]vidence of
multiple sales of resale quantities of drugs is sufficient in and of itself to make a
submissible case of a conspiracy to distribute.” United States v. Peeler, 779 F.3d
773, 776 (8th Cir. 2015) (citations omitted).
At trial, Special Agent Emmet Warkenthien with the Bureau of Alcohol,
Tobacco, Firearms and Explosives testified that he began utilizing Pope as a
confidential informant in September 2018 and arranged several controlled drug
transactions in which Pope purchased methamphetamine from Ramirez: on
November 5, 2018, Ramirez “fronted”2 approximately 48.4 grams of
methamphetamine to Pope; on December 3, 2018, Ramirez fronted Pope another
2 Witness testimony defined “fronted” as meaning that Ramirez would give
methamphetamine to Pope or Webb without requiring any payment, and after Pope
or Webb had re-distributed that methamphetamine and earned a profit, they would
pay Ramirez.

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approximately 62 grams of methamphetamine; and on February 25, 2019, Ramirez
sold Pope approximately 59.9 grams of methamphetamine. Pope testified that, prior
to becoming a confidential informant, he began buying methamphetamine from
Ramirez, whom he knew as “Cheech,” in 2017. Pope purchased methamphetamine
from Ramirez approximately every one to two weeks and estimated that, prior to
becoming a confidential informant, he purchased a total of ten pounds of
methamphetamine from Ramirez.
Sergeant John Spaeth of the Sioux Falls Police Department testified that after
receiving information that Ramirez was involved in the sale of narcotics, he began
investigating Ramirez. He conducted surveillance of Ramirez during this
investigation and was therefore able to identify Ramirez in court. Narcotics
Detective Dan Christiansen with the Minnehaha County Sheriff’s Office then
testified that he began investigating Ramirez in 2018 and used a confidential
informant to participate in four controlled purchases of methamphetamine from
Webb. Upon Webb’s arrest, he identified Ramirez as a source of methamphetamine.
Detective Christiansen explained that Webb, pursuant to his plea agreement, later
agreed to cooperate and assist the government with its investigation of Ramirez.
Webb testified that he was introduced to Ramirez, whom he also knew as
“Cheech,” in late 2018. Webb initially purchased methamphetamine from an
individual known as “Thug P,” and Thug P charged Webb $8,000 for one pound of
methamphetamine. Thug P obtained methamphetamine from Ramirez, and to cut
costs, Webb began purchasing methamphetamine directly from Ramirez, cutting out
the “middleman.” Webb testified that unlike Thug P, Ramirez charged only $5,000
to $6,000 per pound of methamphetamine. Webb testified that he met with Ramirez
“pretty often,” purchasing methamphetamine from Ramirez on an approximately
weekly basis, typically purchasing one to two pounds of methamphetamine on each
occasion. However, Webb testified that on two occasions, he purchased four pounds
of methamphetamine from Ramirez and paid as much as $32,000 per transaction.
As with Pope, Webb explained that Ramirez often fronted methamphetamine to him
and after he sold the methamphetamine and earned a profit, he would pay Ramirez.

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On the day of Webb’s arrest, law enforcement officers seized approximately two
pounds of methamphetamine from him, and at trial, Webb testified that he had
obtained the two pounds of methamphetamine from Ramirez earlier that same day.
Webb explained that he purchased methamphetamine from Ramirez for resale to
individuals who would then resell it.
The government introduced testimony from a forensic chemist with the Drug
Enforcement Administration (DEA), who testified to the weights and purity of
methamphetamine sold by Ramirez, along with wiretapped recordings from the
controlled drug transactions between Pope and Ramirez and photographs of the
approximately two pounds of methamphetamine seized from Webb on the day of his
arrest.
Viewing this evidence in the light most favorable to the jury’s verdict, a
reasonable jury could find Ramirez guilty of conspiracy to distribute a controlled
substance beyond a reasonable doubt. The quantities of methamphetamine involved
far surpassed the “small amounts of drugs consistent with personal use.” See id.
Further, the testimony of Pope and Webb is alone sufficient to establish Ramirez’s
involvement in the conspiracy. See Conway, 754 F.3d at 587. However, the
government did not rely solely on Pope’s and Webb’s testimony but instead, also
presented testimony from multiple law enforcement officers (who corroborated
Pope’s and Webb’s testimony) and a forensic chemist with the DEA, in addition to
exhibits including wiretapped recordings from the controlled drug transactions
between Pope and Ramirez and photographs of the approximately two pounds of
methamphetamine seized from Webb on the day of his arrest. Ultimately, we find
there was sufficient evidence to support the jury’s verdict.
Ramirez next argues that the district court erred in its calculation of the drug
quantity attributable to Ramirez. “On appeal, ‘[w]e review [a district court’s drug-
quantity finding] for clear error and reverse only when “the entire record definitely
and firmly illustrates that the lower court made a mistake.”’” United States v.
McArthur, 11 F.4th 655, 659 (8th Cir. 2021) (per curiam) (alterations in original)

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(citation omitted). “At sentencing, ‘[t]he government bears the burden of proving
drug quantity by a preponderance of the evidence.’” Id. (alteration in original)
(citation omitted). When determining the drug quantity attributable to Ramirez, the
district court was free to “consider amounts from drug transactions in which [he]
was not directly involved if those dealings were part of the same course of conduct
or scheme,” and “[t]his includes all transactions known or reasonably foreseeable to
[him] that were made in furtherance of the conspiracy.” Id. (citation omitted).
Additionally, “[a] sentencing court may determine drug quantity based on the
testimony of a co-conspirator alone,” United States v. Sarabia-Martinez, 276 F.3d
447, 450 (8th Cir. 2002), and “a district court’s assessment of witness credibility is
quintessentially a judgment call and virtually unassailable on appeal,” United States
v. Rodriguez, 711 F.3d 928, 938 (8th Cir. 2013) (citation omitted).
Ramirez objected to the PSR’s factual statements regarding the quantities of
methamphetamine attributable to him, challenging those quantities which were
determined from Pope’s and Webb’s testimony alone. However, the district court
overruled Ramirez’s objections, finding that Ramirez’s drug distribution conspiracy
involved 21.04 kilograms of methamphetamine. Ramirez’s argument is one of
credibility. At sentencing, he argued that Pope’s and Webb’s testimony about the
amount of methamphetamine obtained from him is based on guesses and
estimations, and the district court should only attribute to him those quantities which
were actually recovered from Pope or Webb (i.e., a total of 1,088.1 grams or a
summation of the 935.8 grams seized from Webb and the 43.6, 55.8, and 52.9 grams
recovered from Pope). However, the district court found Pope’s and Webb’s
testimony credible. See R. Doc. 108, at 9 (“I listened to the testimony of Mr. Webb
and Mr. Pope, and I found both of them to be believable witnesses.”). Specifically,
the district court noted that when Webb was arrested and found in possession of
methamphetamine, he immediately identified Ramirez as his source. Further, the
district court noted that Pope was a confidential informant who participated in
several controlled purchases from Ramirez, which the district court found
corroborated Pope’s testimony that he purchased approximately ten pounds of
methamphetamine from Ramirez prior to becoming a confidential informant. In

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deciding that a base offense level of 38 was appropriate, the district court found that
in light of the other evidence presented at trial, the testimony of Webb and Pope
would have to be discounted dramatically to affect the offense level and that the
evidence did not warrant discounting their testimony to that extent. The district court
explained:
There was a quantity of over 21 kilograms of actual methamphetamine
attributed to the defendant. For him to fall to a level 36, it would have
to be an amount less than 4.5 kilograms of methamphetamine actual,
which is more than 16 kilograms less than what he’s attributed to in the
report. So even giving all benefit of the doubt to the defendant, he
would be—remain in the level 38 where he is currently classified under
the [PSR].
R. Doc. 108, at 10.
After reviewing the evidence presented at trial and the arguments set forth at
sentencing, we find that there is nothing in the record which “definitely and firmly
illustrates that the lower court made a mistake.” McArthur, 11 F.4th at 659 (citation
omitted). All other evidence aside, the testimony of Pope and Webb was alone
sufficient to support the district court’s drug quantity determination, Sarabia-
Martinez, 276 F.3d at 450, and the district court was free to deem their testimony
credible, see Rodriguez, 711 F.3d at 938. Therefore, finding no clear error, we
affirm the district court’s drug quantity determination.
III.
For the foregoing reasons, we affirm the district court.
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