# United States v. Alfredo Acosta Ramirez

> Court of Appeals for the Eleventh Circuit · January 8, 2009 · 306 F. App'x 542

URL: https://www.frixlaw.com/law-library/cases/3064198

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Alfredo Acosta RAMIREZ, Defendant-Appellant
- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 8, 2009
- **Citations:** 306 F. App'x 542
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Tjoflat, Dubina, Pryor
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11416 ELEVENTH CIRCUIT
JANUARY 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK

D. C. Docket No. 07-60041-CR-JIC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFREDO ACOSTA RAMIREZ,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 8, 2009)

Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Alfredo Acosta Ramirez appeals his sentence of 70 months of imprisonment
for conspiring to obstruct, delay, and affect commerce by robbery and extortion.

18 U.S.C. § 1951(a). Ramirez argues that he was entitled to a downward

adjustment for his minor role in the robbery and his sentence is unreasonable. We

affirm.

I. BACKGROUND

In December 2006, Gustavo Laracuente and Jonathan Acosta stole

approximately 3.8 million dollars in cash and negotiable instruments from Brinks

guards during their delivery at a Florida branch of the Bank of America. Acosta, a

former employee of Brinks, was familiar with the route used by Brinks.

Laracuente and Acosta fled the scene in a stolen car and met Ramirez and Lizano

at a prearranged location a few blocks from the robbery. Laracuente transferred

the money into Acosta’s white minivan, which Ramirez drove to Acosta’s home.

When Lizano and Laracuente arrived at Acosta’s residence, the four divided the

$300,000 of currency in the bags. The next day, Ramirez, Acosta, and Laracuente

traveled to New York with a portion of the stolen currency.

Three days later, officers questioned the three men at a motel and seized

$66,927 in cash and $2797 in money orders after the men provided conflicting

accounts regarding the source of the money. A confidential witness later

implicated Acosta and his accomplices. After his arrest, Acosta told authorities

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that he, Laracuente, and Lizano planned the robbery; Ramirez had attended a

meeting at Acosta’s home a few hours before the robbery; Ramirez had transported

Acosta and the stolen money to Acosta’s home; and Ramirez had received $50,000

of the stolen currency.

Ramirez was arrested in Puerto Rico and gave authorities a different version

of events. Ramirez stated that he had traveled from Puerto Rico to Florida with

Acosta and Laracuente and refused to participate in the robbery. Ramirez admitted

that he had been near the bank at the time of the robbery and he later saw Acosta,

Laracuente, and Lizano at Acosta’s house sorting the contents of the bags.

Ramirez denied that he drove a getaway car or received any of the stolen money.

Ramirez stated that he was confronted by a police officer outside his hotel room

after the robbery and the officer entered his room and confiscated $48,000 that

Ramirez had brought with him from Puerto Rico.

Ramirez and his three codefendants were indicted for two counts of

conspiracy to obstruct, delay, and affect commerce by robbery and extortion, 18

U.S.C. § 1951(a), and one count of conspiracy to use and carry a firearm during a

crime of violence, id. § 924(o). Ramirez and Laracuente were also indicted for

possession of the firearm, id. § 924(c)(1), (2). Codefendant Lizano pleaded guilty

to one count of conspiracy to interfere with interstate commerce and received a

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sentence of 70 months of imprisonment. United States v. Lizano, No. 07-14096

(11th Cir. June 26, 2008). Ramirez pleaded guilty to conspiracy to interfere with

interstate commerce, and the district court dismissed Ramirez’s three remaining

charges.

The presentence investigation report listed Ramirez’s base offense level at

20, United States Sentencing Guidelines § 2B3.1(a) (Nov. 1989), and increased it

by six levels because the loss was between 2.5 and 5 million dollars, id. §

2B3.1(b)(7)(G), by five levels for the use of a firearm, id. § 2B3.1(b)(2)(C), and by

two levels because property of a financial institution was stolen, id. § 2B3.1(b)(1).

The report then reduced the offense level by three points because Ramirez accepted

responsibility for the crime and assisted in the investigation. Id. § 3E1.1(a), (b).

With a criminal history of I, the report provided a sentencing range between 97 and

121 months of imprisonment.

Ramirez objected to the presentence report. Ramirez denied that he drove

the minivan or was present at the meeting before the robbery, and he argued that he

received $30,000 instead of $50,000 from the robbery. Ramirez alleged that he

was less culpable than his co-defendants and requested a two-level reduction for

his minor role in the offense. See id. § 3B1.2(b).

At the sentencing hearing, Ramirez repeated his objections to the

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presentence report. Acosta testified that Ramirez did not help plan the robbery,

Ramirez waited in Acosta’s minivan during the robbery, and Ramirez did not count

the robbery proceeds. Acosta also testified that he traveled from Puerto Rico with

Ramirez, but Ramirez did not come to the United States to participate in the

robbery.

The government presented testimony from agent George Miyar of the

Federal Bureau of Investigation regarding Ramirez’s involvement in the robbery.

“[V]ery detailed” information supplied by a friend of Acosta’s girlfriend

established that Ramirez was recruited by and traveled with Acosta to Florida to

commit the robbery. Further investigation led to the seizure of $48,000 from

Ramirez by the Bergen County Police Department that was not attributable, as

Ramirez had alleged, to his mother’s casino winnings. Agent Miyar also found

information to corroborate that Ramirez had helped “scout[]” the bank and had met

with the other participants to plan the robbery.

The district court overruled Ramirez’s objection to the presentence

investigation. The court found that Ramirez “failed to prove by a preponderance of

the evidence that he was substantially less culpable than the average participant”

and denied the request for a downward adjustment. Because the parties had agreed

to a loss amount between $250,00 and $800,000, the district court increased the

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base offense level by three points, rather than the six points recommended in the

presentence report, for a total offense level of 27, which provided a sentencing

range between 70 and 87 months of imprisonment. After it “considered the

statements of all parties, the presentence report[,]” and the statutory factors, the

district court sentenced Ramirez to 70 months of imprisonment. The court found

that it “would [not] be appropriate to sentence Mr. Acosta” to a greater sentence

than co-defendant Lizano. The court also “note[d] for the record that even if a two

level minor role reduction was granted, that [Ramirez’s] guideline range would be

fifty-seven to seventy-one months” and “[e]ven under those circumstances, . . . a

reasonable sentence would be seventy months within that revised guideline range.”

II. STANDARDS OF REVIEW

The “determination of a defendant’s role in the offense is a finding of fact to

be reviewed only for clear error.” United States v. Rodriguez De Varon, 175 F.3d

930, 937 (11th Cir. 1999). We review the reasonableness of a criminal sentence

for an abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594, 596–97

(2007). “[T]he party who challenges the sentence bears the burden of establishing

that the sentence is unreasonable in the light of both [the] record and the factors in

section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

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III. DISCUSSION

Ramirez presents two challenges to his sentence. First, Ramirez argues that

he was entitled to a downward adjustment for his minor role in the conspiracy.

Second, Ramirez argues that his sentence is unreasonable. We address each issue

in turn.

A. The District Court Did Not Clearly Err by Denying Ramirez a Downward
Adjustment.

A defendant may receive a two-level downward adjustment for his minor

role in the charged offense. U.S.S.G. § 3B1.2(b). To qualify for the adjustment,

the defendant must establish by a preponderance of the evidence, De Varon, 175

F.3d at 939, that he was “less culpable than most other participants, but [that his]

role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. n.5. The district

court applies a two-part analysis to determine whether to award a downward

adjustment. De Varon, 175 F.3d at 940–41. The court first determines the

defendant’s role in the criminal activity and next compares the defendant’s conduct

to that of his cohorts. Id. at 940–41, 944; see also U.S.S.G. § 3B1.2, cmt. n.3.

These “[i]ntensely factual inquiries . . . are properly consigned to the experienced

discretion of the district judge.” Id. at 938.

The district court did not clearly err by denying Ramirez a minor-role

reduction. Ramirez did not play a minor role in the conspiracy. Ramirez traveled

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to Florida to commit the robbery; attended a meeting at Acosta’s home to plan the

robbery; transported Acosta and the stolen proceeds to Acosta’s home; and

received a share of the proceeds.

B. Ramirez’s Sentence Is Reasonable.

The district court did not abuse its discretion by imposing a sentence at the

low end of the advisory guideline range. Ramirez complains that the district court

did not consider his minor role in the offense and his minimal criminal history, but

the record refutes this argument. The district court considered the sentencing

factors and imposed a sentence identical to that received by Ramirez’s cohort who

drove the other getaway car. See 18 U.S.C. § 3553(a); Gall, 128 S. Ct. at 597.

Ramirez’s sentence is reasonable.

IV. CONCLUSION

Ramirez’s sentence is AFFIRMED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3064198. Public record. Not legal advice.