United States of America v. Luis Fernandez Ruiz-Herrera

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2166
_____________
UNITED STATES OF AMERICA
v.
LUIS FERNANDEZ RUIZ-HERRERA,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 10-CR-06-00537-3)
District Judge: Honorable Paul S. Diamond
_____________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 1, 2012
Before: FUENTES, FISHER and GREENBERG, Circuit Judges
(Opinion Filed: November 6, 2012)
_____________
OPINION OF THE COURT
_____________
FUENTES, Circuit Judge:
Luis Fernandez Ruiz-Herrera (“Ruiz-Herrera” or “Appellant”) appeals his
sentence of 360 months for conspiracy to distribute five kilograms or more of cocaine
and for possession with intent to distribute a controlled substance in violation of 21

-- 1 of 5 --

2
U.S.C. § 846, and 21 U.S.C. § 841(a)(1), (b)(1)(A), respectively. He argues that the
United States District Court for the Eastern District of Pennsylvania violated Apprendi v.
New Jersey, 530 U.S. 466 (2000), by classifying him as a “manager ” of a criminal
conspiracy pursuant to U.S.S.G. § 3B1.1(b), which subjected him to a three-level
enhancement and made him ineligible for a two-level downward departure under the
safety valve provision of the sentencing guidelines. We disagree, and thus affirm.
I. Factual and Procedural Background
As we write solely for the parties, we recite only those facts necessary to our
decision. Ruiz-Herrera participated in two separate attempts to deliver cocaine, one from
Laredo, Texas to Philadelphia, Pennsylvania, and another from California to Detroit,
Michigan. The first incident began in May 2005 when a confidential informant
(“Informant”) met with Ruiz-Herrera, Paul King’s (“King”) co-defendant, to set up a
delivery of cocaine to King in Philadelphia. Subsequently, Ruiz-Herrera provided the
Informant with the number for a contact in Laredo, Texas (“Contact”) and directed him to
speak with the contact about transporting a load of cocaine from Texas to Philadelphia.
Ruiz-Herrera also provided the Informant with instructions for the delivery of the
cocaine.
With the information provided by Ruiz-Herrera, the Informant called the Contact
and arranged for pick-up of the shipment destined for Philadelphia. Thereafter, on June
28, 2005, the Informant delivered approximately 90 kilograms of cocaine to a lot owned
by King in Philadelphia. Subsequently, King arrived at the lot and oversaw the removal

-- 2 of 5 --

3
of the cocaine from pipes in the Informant’s tractor-trailer to a white van. The DEA
executed a search warrant for the van and found 89.93 kilograms of cocaine.
In the second incident, Ruiz-Herrera conspired with the Informant to deliver
cocaine from California to Detroit, Michigan. Ruiz-Herrera, driving a black Saturn,
escorted the Informant, who drove his tractor-trailer, to a location under an over-pass in
Wilmington, California. There, Ruiz-Herrera directed the loading of cocaine into the
Informant’s tractor-trailer and instructed the Informant to proceed to Detroit. Authorities
later stopped the tractor-trailer and seized 64 kilograms of cocaine.
Following a jury trial, Ruiz-Herrera was found guilty on one count of conspiracy
to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 and one
count of possession with the intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A). The statutory sentencing range for these violations is ten
years to life imprisonment. The base offense level is 38, which, combined with Ruiz-
Herrera’s criminal history category of I, results in a sentencing guidelines range of 235-
293 months. At the sentencing hearing, and over Ruiz-Herrera’s objection, the District
Court found that Ruiz-Herrera was a “manager” of the criminal conspiracy, increasing his
base offense level to 41, which resulted in a sentencing guidelines range of 324-405
months. After considering all relevant factors set forth in 18 U.S.C. § 3553(a), the
District Court sentenced Ruiz-Herrera to 360 months imprisonment. Ruiz-Herrera
appealed.1
1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review the District Court’s factual determination for

-- 3 of 5 --

4
II. Discussion
Appellant argues that, under Apprendi, the determination as to whether he was a
“manager” for sentencing purposes should have been made by a jury and not the
sentencing court.
In Apprendi, the defendant pled guilty to second-degree possession of a firearm
for unlawful purposes, which carried a prison term of five to ten years. But the trial court
found that Apprendi’s conduct violated New Jersey’s “hate crime” law because it was
racially motivated, and, accordingly, imposed a 12-year sentence, two years more than
the maximum allowed under the firearm statute. The Supreme Court reasoned that this
violated Apprendi’s right to a jury trial, and held that, “[o]ther than the fact of prior
conviction, any fact that increases the penalty for a crime beyond that prescribed statutory
maximum must be submitted to the jury, and proved beyond a reasonable doubt.”
Apprendi, 530 U.S. at 490.
In United States v. Booker, 543 U.S. 220, 245-68 (2005), the Supreme Court
applied Apprendi’s holding to the federal sentencing guidelines and held that the
sentencing guidelines are advisory, not mandatory, and that courts are to consider them
and other factors in 10 U.S.C. § 3553(a) in selecting an appropriate sentence. Id. In
United States v. Grier, 475 F.3d 556, 565 (3d Cir. 2007), this Court made it clear that,
after Booke, a sentencing judge may make factual findings pertinent to considering the
clear error and de novo application of the law to the facts. United States v. Lafferty, 503
F.3d 293, 298 (3d Cir. 2007).

-- 4 of 5 --

5
advisory guidelines, and must make such findings under a preponderance of the evidence
standard.
In this case, the statutory maximum for the violations is life imprisonment. Under
Grier, the District Court made a factual finding concerning Ruiz-Herrera’s role as a
“manager,” which did result in a higher guideline range. Nevertheless, the court imposed
a sentence of 360 months imprisonment, a sentence within the statutory maximum of life
imprisonment. Moreover, there is nothing to indicate that the District Court viewed the
guidelines as anything other than advisory and the record reflects that the District Court’s
finding of Ruiz-Herrera as “manager” is supported by a preponderance of the evidence.
Consequently, the District Court did not violate Apprendi.
Because the District Court did not violate Apprendi in determining that Ruiz-
Herrera was a “manager,” the court’s application of the three-level enhancement under
U.S.S.G § 3B1.1(b), and its denial of the safety valve provision of the U.S.S.G. § 5C1.2
was not erroneous.2
III. Conclusion
Finally, we are satisfied that the District Court properly considered
the appropriate factors set forth in 18 U.S.C. § 3553(a).
We conclude that the District Court did not violate Apprendi in finding Ruiz-
Herrera to be a “manager” under an advisory guideline range. Accordingly, we will
affirm the District Court’s sentence.
2 The safety valve provision states that in the case of an offense under 21 U.S.C. §§ 841,
846, the court shall impose a sentence in accordance with applicable guidelines below the
statutory minimum sentence, if the court finds that the defendant meets the criteria in 18
U.S.C. § 3553(f)(1)-(5). Based on 18 U.S.C. § 3553(f)(4), a defendant is ineligible for
the safety valve provision if the defendant is a “manager” or “supervisor” in the offense.

-- 5 of 5 --