UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4912

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE MARCIAL RAMOS-HERNANDEZ,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. James C. Cacheris, Senior 

District Judge. (1:09-cr-00549-JCC-1)

Submitted: April 19, 2011 Decided: May 13, 2011

Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William B. Cummings, WILLIAM B. CUMMINGS, PC, Alexandria, 

Virginia, for Appellant. Neil H. MacBride, United States 

Attorney, Jessica W. Knight, Special Assistant United States 

Attorney, Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Jose Marcial Ramos-Hernandez appeals from his 

convictions for various cocaine offenses and his resulting 

120-month sentence. On appeal, he challenges the sufficiency of 

the evidence supporting two of his convictions and asserts that 

the district court relied on clearly erroneous factual findings 

in determining his sentence. We affirm.

I.

A federal grand jury returned an indictment charging 

Jose Marcial Ramos-Hernandez with conspiracy to distribute 500 

grams or more of cocaine and three counts of distribution of 

cocaine. After pleading not guilty, Ramos-Hernandez consented 

to a bench trial. The evidence at trial showed that, over the 

course of many transactions, undercover Detective Rafael Fortiz 

purchased various items from Santos Rene Alfaro Rubio (“Rene”), 

including stolen items, guns, and drugs. Specifically, Rene 

sold cocaine to Fortiz on March 31 (one ounce), April 9 (one 

ounce), and May 26, 2009 (four ounces). In addition, Rene 

attempted to sell cocaine to Fortiz on May 19. At the May 26 

sale, Rene and Ramos-Hernandez were arrested. 

Rene pled guilty to offenses arising from these 

transactions and testified at Ramos-Hernandez’s trial. He 

stated that he obtained the cocaine sold to Fortiz from 
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Ramos-Hernandez. In turn, Ramos-Hernandez obtained the cocaine 

from Nelson Rivas Palacios, also known as Chepe. While evidence 

showed that Rene initially told Fortiz that his supplier for the 

March 31 transaction was not Ramos-Hernandez, Rene confirmed at 

trial that the only source he had for all the charged 

transactions was Ramos-Hernandez. 

With regard to the proposed May 19 sale, Rene 

testified that he ordered sixteen ounces of cocaine from 

Ramos-Hernandez, who indicated he could deliver it. However, a 

lack of police resources caused Fortiz to cancel the sale and 

reschedule for May 26. On May 26, Ramos-Hernandez was only able 

to get four ounces from Chepe. 

In a post-arrest interview, Ramos-Hernandez admitted 

providing Rene with cocaine for each of the transactions. 

Regarding the May 19 proposed deal, Ramos-Hernandez admitted 

that he saw the sixteen ounces originally scheduled to be 

delivered. However, Ramos-Hernandez testified at trial that he 

did not provide Rene with any cocaine prior to May 26. He 

claimed that he participated in the May 26 sale as a favor to 

Rene. He also testified that Chepe dealt between fifteen and 

twenty ounces of cocaine a week. 

The court found Ramos-Hernandez guilty on all four 

counts. The court explicitly found Ramos-Hernandez to not be 

credible, based on both his substantive testimony and his 
4

demeanor. The court also found Ramos-Hernandez responsible for 

18 ounces (or 510 grams) of cocaine for purposes of the 

conspiracy count. The court came to this amount by counting the 

one-ounce transactions on May 31 and April 9, and attributing a 

total of sixteen ounces to Ramos-Hernandez for the aborted May 

19 and completed May 26 transactions. 

The presentence report (“PSR”) attributed 

Ramos-Hernandez with 3.9123 kilograms of cocaine, based upon the 

eighteen ounces found by the court as well as fifteen ounces a 

week for the time period between the first and the last 

transaction. The fifteen-ounce amounts were based on 

co-conspirator Chepe’s sales, about which Ramos-Hernandez 

admitted knowing. The PSR then calculated a Guidelines range of 

151 to 188 months in prison. 

At sentencing, Ramos-Hernandez, through counsel, 

challenged the drug quantity and sought either a departure or a 

variance sentence, admitting that “the formal application of the 

guidelines are accurate.” The court held Ramos-Hernandez 

responsible for the two one-ounce distributions, the sixteen 

promised ounces, and four ounces from the final distribution. 

Although twenty-two ounces calculates to 623 grams, the court 

calculated the total to be 730 grams. With this new drug 

amount, Ramos-Hernandez’s Guidelines range was 97 to 121 months. 

Neither party objected. 
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The court sentenced Ramos-Hernandez to 120 months in 

prison. The court noted that, even if Ramos-Hernandez’s 

Guidelines range had remained at 151-188 months, the court would 

have imposed a variance sentence of 120 months, as the court 

considered that sentence as “adequate . . . for deterrence and 

punishment purposes” and proper comparatively to Rene’s 42-month 

sentence. The court then stated that the sentence reflected the 

nature, circumstances, and seriousness of the offense and 

reflected the history and characteristics of Ramos-Hernandez. 

Specifically, the court recognized Ramos-Hernandez’s argument 

that his overstated criminal history merited a variance and 

rejected it. 

II.

Ramos-Hernandez contends that the evidence is 

insufficient to support his conviction for the March 31 sale 

based on Rene’s testimony that he initially told Fortiz that he 

had a different supplier for that transaction. “A defendant 

challenging the sufficiency of the evidence to support his 

conviction bears a heavy burden.” United States v. Beidler, 

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks 

omitted). We will uphold the jury’s verdict “if, viewing the 

evidence in the light most favorable to the [G]overnment, it is 

supported by substantial evidence.” United States v. Reid, 
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523 F.3d 310, 317 (4th Cir. 2008). We do not weigh evidence or 

review witness credibility. United States v. Wilson, 118 F.3d 

228, 234 (4th Cir. 1997). Rather, it is the role of the 

fact-finder to judge the credibility of witnesses, resolve 

conflicts in testimony, and weigh the evidence. United 

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984). 

Ramos-Hernandez’s challenge to the sufficiency of the 

evidence is essentially a credibility challenge. Although Rene 

testified at trial that Ramos-Hernandez was his only supplier, 

Ramos-Hernandez argues that Rene’s testimony is not worthy of 

belief given his prior inconsistent statement. However, it was 

the judge’s role to assess witness credibility and resolve 

conflicts in testimony. As we will not review the credibility 

of witnesses or re-weigh their testimony on appeal, 

Ramos-Hernandez’s claim is without merit.1

 1 Ramos-Hernandez also asserts that the evidence was 

insufficient to show that the conspiracy involved more than 500 

grams of cocaine, because the one ounce from the March 31 sale 

should be removed from the calculation based upon Rene’s 

inconsistent statements. However, because the court chose to 

credit Rene’s in-court statements, the March 31 amount was 

properly included, and this credibility determination is not 

reviewable on appeal.
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III.

Ramos-Hernandez contends that the district court 

arrived at a clearly erroneous drug amount. Specifically, as 

discussed above, the drug amounts found by the court add up to 

only 623 grams, rather than the 730 cited by the district court. 

Further, Ramos-Hernandez challenges the court’s inclusion of 

both the sixteen ounces from the aborted sale and the four 

ounces from the replacement sale. However, Ramos-Hernandez 

admits that, whether the correct amount was 510, 623, or 730, 

the Guidelines calculation would be the same. 

Ramos-Hernandez then contends that the district 

court’s “significant procedural error” or “clear error” infected 

the fairness of the rest of the sentencing hearing and caused 

the district court to impose a higher sentence than it would 

have had it realized the correct drug amount. According to 

Ramos-Hernandez, the excess amount of cocaine discouraged the 

district court from reducing the Guidelines range, imposing a 

sentence at the bottom of the Guidelines range, or choosing to 

impose a sentence below the Guidelines range.2

 2 The Government asserts that the district court was faced 

with an applicable five-year (120-month) statutory minimum 

sentence, effectively negating many of Ramos-Hernandez’s claims. 

However, a five-year sentence correlates to only sixty months in 

prison.
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We review a sentence imposed by a district court for 

reasonableness, applying an abuse of discretion standard. 

Gall v. United States, 552 U.S. 38, 41 (2007). Reliance on 

“clearly erroneous facts” will constitute “significant 

procedural error.” Id. at 51. Assuming Ramos-Hernandez 

properly requested a variance sentence below his advisory 

Guidelines range, his claim that the district court relied on 

clearly erroneous facts is reviewed for harmless error. 

Puckett v. United States, 129 S. Ct. 1423, 1432 (2009) (noting 

that procedural errors at sentencing are “routinely subject to 

harmlessness review”); see also United States v. Lynn, 592 F.3d 

572, 576 (4th Cir. 2010) (holding that preserved claims are 

reviewed for abuse of discretion, and if we find abuse, reversal 

is required unless we conclude the error was harmless). 

Procedural error is harmless if we can say with “fair assurance” 

that the district court’s explicit consideration of the 

appropriate facts would not have affected the sentence imposed. 

See United States v. Boulware, 604 F.3d 832, 838 (4th Cir. 

2010).

We find that the district court’s error in this case 

was merely harmless. First, the district court did not commit 

clear error by holding Ramos-Hernandez responsible for both the 

sixteen ounces from the aborted May 19 sale and the four ounces 

from the completed May 26 sale. There was testimony that the 
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sixteen ounces were available for delivery on May 19, and no 

testimony that the four ounces were somehow part of the original 

sixteen ounces. It is not clear error to find one amount (510 

grams) beyond a reasonable doubt and a larger amount by a 

preponderance of the evidence. Thus, the proper amount, given 

the district court’s findings, should have been 623 grams rather 

than the erroneous 730 grams stated by the district court.

Nonetheless, the record does not find any support for 

the conclusion that the 107-gram difference affected the 

district court’s consideration of the appropriate sentence. 

First, Ramos-Hernandez’s offense level applied to cocaine 

amounts from 500 grams to 2000 grams (two kilograms). U.S. 

Sentencing Guidelines Manual § 2D1.1(c)(7) (2009). Thus, both 

623 and 730 fall into the low end of the offense level, and it 

is difficult to discern why the district court would treat them 

differently. Second, the district court was well aware of the 

amount of drugs involved and the extent of Ramos-Hernandez’s 

participation in the conspiracy, given that the court presided 

over the bench trial. As such, the court was not likely to be 

depending heavily on the actual gram count for determination of 

the final sentence. Third, the court stated that 120 months was 

the appropriate sentence regardless of the Guidelines range. 

Fourth, when the court was listing the reasons for its chosen 

sentence, including crafting an appropriate sentence compared to 
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Ramos-Hernandez’s co-conspirator and affording adequate 

deterrence, the court did not mention the 730 grams as an 

aggravating factor necessitating the chosen sentence. Finally, 

there is simply no evidence in the record that the district 

court considered the 730 gram finding (as opposed to the 510 

gram finding after trial) to be an especially compelling factor. 

The court only mentioned the drug amount when determining the 

offense level, which Ramos-Hernandez agrees was correctly 

calculated.

Based on the foregoing, we find that the court’s 

mathematical error was harmless. The record is clear that the 

court considered 120 months to be the appropriate sentence, 

regardless of the drug amount involved. Accordingly, we affirm 

Ramos-Hernandez’s convictions and sentence. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process.

AFFIRMED