United States of America v. Jose Olivas -Ramirez

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2415
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J OSE O LIVAS -R AMIREZ ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 19—James F. Holderman, Chief Judge.
____________
A RGUED J ANUARY 11, 2007—D ECIDED J UNE 1, 2007
____________
Before B AUER , F LAUM , and R OVNER , Circuit Judges.
B AUER , Circuit Judge. Jose Olivas-Ramirez pleaded
guilty to conspiring with co-defendants Heber Gomez-
Albaranga, Roberto Lopez, Daniel Perez, Rogelio Bautista,
and others to distribute and attempt to manufacture at
least 500 grams of methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. The district court sentenced
Olivas-Ramirez to 135 months’ imprisonment. On appeal,
he argues that the district court erred when it found that
he was not a “minor participant” in the conspiracy pursu-
ant to U.S.S.G. § 3B1.2(b) and that he was not eligible for
the Sentencing Guideline’s safety valve provision, U.S.S.G.
§ 5C1.2. He also argues that his sentence is unreasonable
because the district court failed to properly calculate his

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2 No. 06-2415
guideline range or consider and apply 18 U.S.C. § 3553(a).
For the following reasons, we affirm.
I. Background
In August of 2004, Drug Enforcement Administration
(DEA) agents and task force officers began investigating a
methamphetamine-trafficking organization headed by
Gomez-Albaranga. From August 2004 through January
2005, Agent Luis Dominguez, Jr. met with Gomez-
Albaranga on several occasions to negotiate the purchase
of methamphetamine. Dominguez purchased one pound
of methamphetamine from Gomez-Albaranga’s drug-
associates Lopez, Perez, and Bautista on September 24,
2004.
Following this purchase, Dominguez had further conver-
sations with Gomez-Albaranga and Lopez regarding future
methamphetamine transactions. During one conversation,
Gomez-Albaranga told Dominguez that although he had
most of the chemicals and a chemist to “cook” metham-
phetamine, he lacked pseudoephedrine, an ingredient
needed to manufacture methamphetamine. Dominguez
told Gomez-Albaranga that he had pseudoephedrine. The
two agreed to combine their resources: Dominguez agreed
to supply the pseudoephedrine and a location that could be
used as a laboratory, and Gomez-Albaranga agreed to
supply a chemist and the other ingredients necessary to
manufacture methamphetamine.
On January 24, 2005, Dominguez met with Gomez-
Albaranga and Lopez to discuss the location of a ware-
house that he had secured to serve as the methamphet-
amine laboratory. Later that day, Dominguez and DEA
Special Agent Javier Rodriguez, who was posing as
Dominguez’s associate, led Olivas-Ramirez and the four co-
defendants to a warehouse in Bonfield, Illinois.

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No. 06-2415 3
Once they arrived at the warehouse, Olivas-Ramirez was
introduced to the undercover agents as the methamphet-
amine “cook,” and he took the lead in discussing whether
the warehouse would be suitable for manufacturing the
methamphetamine. He asked the undercover agents what
purpose the warehouse had served previously and who had
access to the warehouse. He commented on the number of
windows that the warehouse had and discussed with
Gomez-Albaranga the fact that a silver-like cloud can
appear and remain fairly close to the ground during the
manufacturing of methamphetamine.
While inspecting the inside of the warehouse, he found
a gas heater with an open flame. He explained that a fan
would be needed to remove the fumes created during the
cooking process and discussed other ventilation issues. He
also found a water source and an area where he could
place his hoses, buckets, and beakers. He told the under-
cover agents that he could make approximately 12 pounds
of methamphetamine from the quantity of pseudo-
ephedrine that the undercover agents said they would
provide him but, in order to produce that amount of
methamphetamine, he would need eight white plastic
barrels, fourteen gallons of alcohol, four gallons of acetone,
a coffee pot, two stoves, two hoses, and a good drainage
system to dispose of any excess chemicals. Before leaving
the warehouse, he showed burn marks on his arms that he
said he got when he burned his arms while cooking
methamphetamine. At the end of the meeting, he assured
Dominguez that the warehouse was suitable for cooking
the methamphetamine and that he would be present
to cook the chemicals. Dominguez then agreed to meet
Lopez the next day to give him the pseudoephedrine pills.
On January 25, 2005, Dominguez and Rodriguez met
with Gomez-Albaranga at a residence located on Chicago’s
north side. Dominguez expressed his concern that he had
not seen where the pills were going to be washed and

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4 No. 06-2415
asked Gomez-Albaranga to give him the other metham-
phetamine ingredients to hold as collateral while the
pseudoephedrine was extracted from the pills. Gomez-
Albaranga agreed, and Olivas-Ramirez brought out a bag
containing chemicals and a package of iodine. When he
handed the items to Rodriguez, Olivas-Ramirez told him
that some of the bottles containing liquid were dangerous.
Later that day, Dominguez and Rodriguez went to Chela’s
restaurant, where they had been told to deliver the
pseudoephedrine pills. At the restaurant, Dominguez and
Rodriguez found cans of acetone and other items used to
make methamphetamine. They then arrested Olivas-
Ramirez, Gomez-Albaranga, Lopez, Perez, and Bautista.
On March 22, 2005, Olivas-Ramirez was charged in
counts one and four of a four-count indictment. Count one
charged the defendants with conspiracy to distribute at
least 500 grams of methamphetamine and to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 846. Count four charged the defendants with the
attempted manufacture of approximately 450 grams of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and 18 U.S.C. § 2. Without a plea agreement, Olivas-
Ramirez pleaded guilty to count one.
On March 23, 2006, the defendant and his attorney
agreed to speak with DEA agents and an Assistant United
States Attorney to discuss his involvement in the charged
offense. During the meeting, Olivas-Ramirez said that he
had performed manual labor for Gomez-Albaranga in
Texas prior to coming to Chicago. He said that he came to
Chicago after Gomez-Albaranga had asked him if he was
interested in making some extra money; however, he did
not know the purpose of his trip to Chicago. He also
explained that he had burned his arms while cooking eggs
for himself in Texas.
Olivas-Ramirez denied being a methamphetamine cook
and instead claimed that he had pretended to be a cook

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No. 06-2415 5
because the real cook, a man named Chino, could not
attend the meeting at the Bonfield warehouse. He stated
that on the way to the warehouse, Lopez had instructed
him to check the windows and make sure that the floors of
the warehouse were clean. He said that Lopez had given
him this instruction to make it appear to Dominguez and
Rodriguez that he was an authentic methamphetamine
cook. When being questioned about the ingredients that he
had handed over to the undercover agents, he denied
knowing from where they had come from or for what they
were used. He also claimed that he had gone to Chela’s
restaurant to play cards.
At sentencing, Olivas-Ramirez argued that he was a
minor participant in the conspiracy and therefore deserved
to have his offense level decreased by two levels pursuant
to § 3B1.2(b) of the Sentencing Guidelines. He also argued
that he was eligible for the safety valve provision under
U.S.S.G. § 5C1.2 and asked the court to sentence him
below the statutory minimum sentence. After finding that
Olivas-Ramirez was not a minor participant in the conspir-
acy and that he failed to satisfy the requirements of the
safety valve provision, the district court sentenced Olivas-
Ramirez to 135 months of imprisonment and five years of
supervised release. Olivas-Ramirez then filed this timely
appeal.
II. Discussion
A. Adjustment for Mitigating Role
Olivas-Ramirez first argues that he was a minor partici-
pant in the offense and that the district court erred by
denying him a two-level reduction under U.S.S.G.
§ 3B1.2(b). He contends that his limited participation in
the conspiracy over the two-day period made him substan-
tially less culpable than the average participant.

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6 No. 06-2415
“The district court’s determination concerning the
defendant’s [participation] in the offense is a finding of
fact, subject to a clearly erroneous standard of review on
appeal.” United States v. Mendoza, 457 F.3d 726, 728 (7th
Cir. 2006) (citing United States v. Hankton, 432 F.3d 779,
793 (7th Cir. 2005). A defendant’s offense level may be
decreased by two levels if the sentencing court determines
that the defendant was a minor participant in the offense.
See U.S.S.G. § 3B1.2(b). To receive a deduction as a minor
participant, a defendant must demonstrate, by a prepon-
derance of the evidence, that he/she was “substantially less
culpable” than the average participant. Mendoza, 457 F.3d
at 728 (citing U.S.S.G. § 3B1.2(b), comment, application
n.3(A)). Clear error exists when, after reviewing the
evidence, we are “left with a definite and firm conviction
that a mistake has been committed.” Id. (quoting United
States v. Arocho, 305 F.3d 627, 641 (7th Cir. 2002).
Olivas-Ramirez says that his role was minor because he
only pretended to be the methamphetamine cook and he
was only involved in the conspiracy for two days. He
further argues that the district court failed to compare his
role to the roles of the other participants in the conspiracy.
The district court, however, found that “[Olivas-Ramirez’s]
involvement . . . shows that he was a person that was
central to the effectuation of the criminal conduct that the
parties desired to participate in. Without the cook to cook
the methamphetamine, there would be no methamphet-
amine created.” In rejecting Olivas-Ramirez’s arguments,
the district court also found that even if Olivas-Ramirez
was not the experienced methamphetamine cook, he was
an assistant cook with knowledge of methamphetamine
and its manufacturing process. We agree.
Olivas-Ramirez and his co-defendants believed that if
they supplied a cook and other necessary ingredients, the
undercover agents would supply pseudoephedrine and a
laboratory. Gomez-Albaranga and Lopez trusted Olivas-

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No. 06-2415 7
Ramirez to explain the methamphetamine cooking process
to the undercover agents and evaluate the adequacy of the
Bonfield warehouse. Olivas-Ramirez inspected the ware-
house, stated which items he would need to produce the
drugs, and assured the undercover agents that the ware-
house was suitable for manufacturing and that he would
help manufacture the methamphetamine. His statements
at the warehouse suggest that he previously had manufac-
tured or assisted in manufacturing methamphetamine. He
also gave the agents iodine in return for a quantity of
pseudoephedrine. His actions were essential to his and his
co-defendants attempt to manufacture methamphetamine.
The district court did not clearly err in determining that
Olivas-Ramirez was not “substantially less culpable” than
the others and in denying him a two-level reduction.
B. Application of the Safety Valve Provision Under
U.S.S.G. § 5C1.2
Olivas-Ramirez also challenges the district court’s denial
of his motion requesting a downward departure from the
statutory minimum sentence in accordance with U.S.S.G.
§ 5C1.2. We review a district court’s decision concerning a
safety valve departure for clear error. United States v.
Alvarado, 326 F.3d 857, 862 (7th Cir. 2003). The purpose
of the safety valve statute is to “allow certain non-violent
first-time drug offenders to avoid the application of
statutory minimum mandatory sentences if they cooper-
ated with the government.” Id. at 860. The defendant bears
the burden of proving by a preponderance of the evidence
that he is eligible for the safety valve. United States v.
Ramirez, 94 F.3d 1095, 1101 (7th Cir. 1996). Section
5C1.2(a) of the Sentencing Guidelines permits the district
court to make such a departure if five criteria are satisfied.
United States v. Williams, 202 F.3d 959, 964 (7th Cir.
2000). The only criterion in dispute is whether Olivas-

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8 No. 06-2415
Ramirez “has truthfully provided to the government all
information and evidence [he] has concerning the offense
or offenses that were part of the same course of conduct or
of a common scheme or plan and complete informa-
tion. . . .” See U.S.S.G. § 5C1.2(a)(5).
Olivas-Ramirez argues that when he met with the
government agents prior to sentencing, he fully admitted
his involvement, disclosed his complete role, and explained
everything that he knew concerning the attempted meth-
amphetamine production. We agree with the district court
that Olivas-Ramirez was “minimizing his conduct in
connection with the offense.” Too many of the defendant’s
propositions—that he did not know what he would be
doing while in Chicago, that he never had cooked or
assisted in cooking methamphetamine before, that Lopez
had explained to him the process of cooking methamphet-
amine and told him what to tell the undercover agents,
that he had burned his arms while cooking eggs, that he
did not know what was inside the bottles that he handed
over to Dominguez, and that he was only at Chela’s to play
cards—are unbelievable. The district court did not clearly
err in finding that Olivas-Ramirez had not provided
completely truthful information, and thus, Olivas-Ramirez
did not qualify for a decrease in his sentence pursuant to
U.S.S.G. § 5C1.2.
C. Reasonableness of Sentence
Olivas-Ramirez’s final argument is that the 135-month
sentence imposed by the district court was unreasonable.
After United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), we review a defendant’s sentence
for unreasonableness. We review the district court’s fact-
findings at sentencing for clear error and the application
of those to the Sentencing Guidelines de novo. United
States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006).

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No. 06-2415 9
While the district court is not required to discuss and
make findings as to each factor listed in 18 U.S.C.
§ 3553(a), the record on appeal must indicate that the
court conducted “meaningful consideration of the types of
factors that Section 3553(a) identifies.” United States v.
Laufle, 433 F.3d 981, 987 (7th Cir. 2006) (citation omitted).
Olivas-Ramirez argues that the district court incorrectly
denied him an offense level reduction pursuant to § 3B1.2
and, therefore, erred in determining that his offense level
was 33 and that his advisory guideline range totaled
between 135 and 168 months. Because Olivas-Ramirez was
not a minor participant, this argument fails. He also
argues that the district court failed to discuss and consider
meaningfully the statutory sentencing factors outlined in
18 U.S.C. § 3553(a). We disagree. The district court
considered each of the § 3553(a) factors and provided an
adequate explanation before sentencing Olivas-Ramirez to
the bottom of the applicable guideline range.
III. Conclusion
Accordingly, the sentence of the district court is
AFFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-1-07

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