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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

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No. 10-2434

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UNITED STATES OF AMERICA

v.

RAMON FERRER,

AKA Poncho,

Ramon Ferrer,

 Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania 

District Court No. 1-08-cr-00218-002

District Judge: The Honorable Sylvia H. Rambo

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

July 14, 2011

Before: RENDELL, SMITH, and ROTH, Circuit Judges

(Filed: August 9, 2011)

 

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OPINION

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SMITH, Circuit Judge.

Ramon Ferrer was convicted, along with two of his three co-defendants, of (i) 

attempt and conspiracy to distribute or to possess with intent to distribute more than 500 
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grams of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and (ii) 

interstate travel in facilitation of attempted drug trafficking, in violation of 18 U.S.C. § 

1952(a)(3). The gist of the criminal conduct was a plot to transport 23 pounds of 

methamphetamine from Georgia to Pennsylvania for sale to one Antonio Pagan, who 

turned out to be a government informant. Although the substance delivered to the 

informant initially field-tested positive for methamphetamine, later lab tests revealed that 

it in fact contained no narcotics. Ferrer appeals his conviction and sentence. The District 

Court had jurisdiction pursuant to 18 U.S.C. § 3231; ours is premised on 28 U.S.C. § 

1291 and 18 U.S.C. § 3742. 

Ferrer raises five assignments of error, none of which has merit. First, he says that 

the District Court should not have denied his motion in limine to restrict the scope of his 

cross-examination. Ferrer says that he would have liked to testify at trial, but that he was 

dissuaded from doing so by the possibility that the prosecution would use the opportunity 

to cross-examine him about issues outside the subject matter about which he would have 

testified. Unfortunately for Ferrer, his decision not to testify precludes us from reviewing 

the District Court’s ruling. In Luce v. United States, 469 U.S. 38 (1984), the Supreme 

Court held that denial of a motion in limine under Fed. R. Evid. 609(a) was not 

reviewable where the defendant did not testify. The Court noted that a court cannot 

assess the balance of probative value against prejudicial effect without knowing the 

precise content of the testimony in question. In addition, any harm resulting from denial 

of the motion is speculative: an in limine ruling may be altered; the government might 

decide not to use the evidence that was the subject of the motion after all; and the 
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defendant’s decision not to testify might actually have been motivated by something 

other than the motion’s denial. Moreover, there is no way to assess whether an error is 

harmless if its effect on the defendant’s case is not known, and a rule allowing review 

where the defendant did not testify would allow him to ―plant‖ error in a trial by making 

dubious motions and then declining to testify. See id. at 41–42. Each of these rationales 

is equally applicable to a motion under Rule 611(b), and our sister circuits have extended 

Luce beyond the Rule 609(a) context. See, e.g., United States v. Nivica, 887 F.2d 1110, 

1115–17 (1st Cir. 1989); United States v. Studnicka, 777 F.2d 652, 660 (11th Cir. 1985). 

Ferrer’s brief does not address this issue, and we see no reason why Luce should not 

control. We therefore will not entertain his appeal of the District Court’s denial of his 

motion in limine.

Ferrer next disputes the District Court’s finding that he was a manager or 

supervisor of a drug-smuggling organization, which qualified him for an enhancement 

under U.S.S.G. § 3B1.1(b). We review the District Court’s factual finding regarding the 

defendant’s role in the offense for clear error. See United States v. Hart, 273 F.3d 363, 

378 (3d Cir. 2001). The District Court rested its conclusion that Ferrer was a manager or 

supervisor on several grounds: Ferrer solicited Pagan to be a customer of and distributor 

for the organization of which he was a part. He rented facilities for the storage of drugs 

and put them to use. He rented vehicles for the transportation of drugs and personally 

travelled between Georgia and Pennsylvania several times to supervise drug transactions. 

He directed one of his co-defendants to bring two pounds of methamphetamine to 

Pennsylvania. And he helped to coordinate a meeting in Georgia that was a precursor to 
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the attempted drug deal that is the subject of this prosecution. See App. 130–31. Ferrer 

protests that there was ―significant evidence that [he] was not a manager or supervisor,‖ 

but was nothing more than a courier. Ferrer Br. 20. On clear-error review, however, it is 

not our role to weigh one side’s evidence against the other’s. Reversal is appropriate 

―only if [the factual finding] is completely devoid of a credible evidentiary basis or bears 

no rational relationship to the supporting data.‖ Shire U.S., Inc. v. Barr Labs., Inc., 329 

F.3d 348, 352 (3d Cir. 2003) (quoting Am. Home Prods. Corp. v. Barr Labs., Inc., 834 

F.2d 368, 370–71 (3d Cir. 1987)). We cannot say that the court’s conclusion here lacks 

an evidentiary basis, and it must therefore be affirmed. 

Ferrer next argues that the District Court should not have counted the full 23 

pounds of counterfeit methamphetamine for sentencing purposes. Ferrer was convicted 

of attempt and conspiracy. The comments to the sentencing guidelines provide that the 

relevant amount for sentencing a criminal convicted of an inchoate offense is not the 

amount actually delivered (since no actual delivery is required for conviction), but rather 

the agreed-upon amount. See U.S.S.G. § 2D1.1 cmt. n.12; United States v. Burke, 431 

F.3d 883, 887 (5th Cir. 2005). The jury’s conviction entails findings that Ferrer intended 

to complete the full 23-pound deal, that he believed that the substance being delivered 

was in fact methamphetamine, and that he was part of a conspiracy (i.e., a criminal 

agreement) to complete the crime. The District Court thus did not err in its application of 

the guidelines.

Ferrer’s fourth argument is that for sentencing purposes, the court should not have 

considered drugs and drug amounts that were involved in past, uncharged transactions. 
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Section 1B1.3(a)(2) of the sentencing guidelines permits counting past acts as ―relevant 

conduct‖ if they ―were part of the same course of conduct or common scheme or plan as 

the offense of conviction.‖ Each of the transactions in question was a sale of drugs from 

Ferrer to Pagan; they were all acts in furtherance of an illicit business relationship. This 

is a sufficient ―common factor,‖ id. cmt. n.9(A), for all of them to be considered in 

determining Ferrer’s sentence.

Finally, Ferrer claims to have been the victim of ―sentencing entrapment‖—the 

idea being that although he admits to a proclivity to commit a lesser offense, the 

government impermissibly enticed him into committing a greater crime. Ferrer 

acknowledges a predisposition to agree to deliver as much as six pounds of 

methamphetamine to Pagan, but argues that he never would have agreed to provide the 

additional seventeen pounds if Pagan had not prevailed upon him. We have not formally 

accepted sentencing entrapment as a valid theory, see United States v. Sed, 601 F.3d 224, 

229 (3d Cir. 2010), and this is not an appropriate case in which to do so. The record 

shows that preliminary discussions involved as much as 70 pounds of narcotics, before 

the deal was scaled back to 23. It was only after that agreement had been formalized that 

Ferrer told Pagan that he would only be able to provide five or six pounds. Pagan then 

―cursed the shit out of him‖ and told Ferrer that he ―could find six pound[s] of meth on 

the side of the road,‖ App. 54, whereupon Ferrer agreed to uphold the initial 23-pound 

bargain. The initial agreement to deliver 23 pounds of methamphetamine was a sufficient 

basis for the District Court’s determination that Ferrer was predisposed to participate in a 

drug sale of at least that scale, particularly in light of the evidence that he had previously 
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been involved in multiple other large narcotics transactions (ten kilograms of cocaine,

100 pounds of marijuana). Because Ferrer was so predisposed, he would be unable to 

successfully invoke sentencing entrapment even if it were a recognized doctrine.

We will affirm the District Court’s judgment.