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United States v. Jacinto Bracmort, 4th Cir. (2012)

1) Jacinto Bracmort was convicted of conspiracy to distribute cocaine base and PCP and sentenced to 120 months in prison. He appealed his conviction and sentence. 2) The appellate court found that the trial evidence established a single conspiracy rather than multiple smaller conspiracies, so the district court did not abuse its discretion in denying a jury instruction on multiple conspiracies. 3) The appellate court also found no error in the district court's reliance on the presentence report to determine drug quantities attributable to Bracmort for sentencing, without making additional factual findings, since Bracmort did not object to the presentence report. The court thus affirmed both Bracmort's conviction and sentence.

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77 views7 pages

United States v. Jacinto Bracmort, 4th Cir. (2012)

1) Jacinto Bracmort was convicted of conspiracy to distribute cocaine base and PCP and sentenced to 120 months in prison. He appealed his conviction and sentence. 2) The appellate court found that the trial evidence established a single conspiracy rather than multiple smaller conspiracies, so the district court did not abuse its discretion in denying a jury instruction on multiple conspiracies. 3) The appellate court also found no error in the district court's reliance on the presentence report to determine drug quantities attributable to Bracmort for sentencing, without making additional factual findings, since Bracmort did not object to the presentence report. The court thus affirmed both Bracmort's conviction and sentence.

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UNPUBLISHED

UNITED STATES COURT OF APPEALS


FOR THE FOURTH CIRCUIT

No. 12-4318

UNITED STATES OF AMERICA,


Plaintiff - Appellee,
v.
JACINTO BRACMORT,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Deborah K. Chasanow, Chief District
Judge. (8:10-cr-00249-DKC-6)

Submitted:

November 27, 2012

Decided:

December 13, 2012

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior


Circuit Judge.

Affirmed by unpublished per curiam opinion.

Joshua R. Treem, Emily L. Levenson, SCHULMAN, TREEM & GILDEN,


P.A., Baltimore, Maryland, for Appellant.
Rod J. Rosenstein,
United States Attorney, Adam K. Ake, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
In August 2011, a jury convicted Jacinto Bracmort of
conspiracy

to

distribute

and

to

possess

with

intent

to

distribute cocaine base and phencyclidine (PCP), in violation


of 21 U.S.C. 841, 846 (2006).

Bracmort was sentenced to 120

months imprisonment and five years supervised release.


this

appeal,

Bracmort

assigns

error

to

the

district

In

courts

denial of a requested jury instruction and the courts failure


to

make

specific

factual

findings

relevant

to

the

quantities attributable to him for sentencing purposes.

drug

For the

reasons that follow, we affirm the judgment.


In his challenge to his conviction, Bracmort argues
the district court abused its discretion in denying his request
for a jury instruction on multiple conspiracies.
district

courts

decision

to

give

instruction for abuse of discretion.

or

refuse

We review the
to

give

jury

United States v. Sarwari,

669 F.3d 401, 410-11 (4th Cir. 2012) (internal quotation marks
omitted).
A district court will be reversed for declining to
give an instruction proposed by a party only when the
requested instruction (1) was correct; (2) was not
substantially covered by the courts charge to the
jury; and (3) dealt with some point in the trial so
important,
that
failure
to
give
the
requested
instruction seriously impaired that partys ability to
make its case.

Noel v. Artson, 641 F.3d 580, 586 (4th Cir.) (internal quotation
marks omitted), cert. denied, 132 S. Ct. 516 (2011).
A court need only instruct on multiple conspiracies
if

such

an

instruction

is

supported

by

the

facts.

States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).

United

Thus, [a]

multiple conspiracy instruction is not required unless the proof


at trial demonstrates that appellant[] [was] involved only in
separate

conspiracies

unrelated

charged in the indictment.


F.3d

542,

574

(4th

emphases omitted).

Cir.

to

the

overall

conspiracy

United States v. Squillacote, 221

2000)

(internal

quotation

marks

and

We have previously explained that a single

conspiracy exists[] when the conspiracy had the same objective,


it

had

the

same

goal,

the

same

nature,

the

same

spread, the same results, and the same product.


v.

Jeffers,

570

F.3d

557,

567

(4th

Cir.

geographic

United States

2009)

(internal

quotation marks and alteration omitted).


Based on our review of the record in its present form,
we conclude that the evidence adduced at trial established that
Bracmort, cooperating witness Ricky Moore, and co-defendant Rico
Toliver

were

part

of

loosely-knit

association

of

members

linked only by their mutual interest in sustaining the overall


enterprise of catering to the ultimate demands of a particular
drug consumption market here, the area in and around Prince
Georges

County,

Maryland.

United
3

States

v.

Banks,

10

F.3d

1044, 1054 (4th Cir. 1993).

Specifically, beginning in late

2009, Moore and Toliver became partners in a common enterprise


of distributing and possessing with the intent to distribute
cocaine base and PCP.

After obtaining drugs from Toliver and

co-conspirator Darrell Banks, Moore would sell these drugs to


Bracmort and others.

Moore frequently and consistently supplied

PCP to Bracmort, which Bracmort would either use or sell to


others.

Bracmort further aided the conspiracy by driving Moore

to drug deals and by attempting to find potential buyers and


sources. *

Because

conspiracy

rather

the
than

trial

evidence

multiple

established

smaller

ones,

we

single

hold

the

district court did not abuse its discretion in denying defense


counsels request to instruct the jury on multiple conspiracies.
Bracmort also challenges his sentence, assigning error
to

the

district

courts

failure

to

make

specific

factual

findings relevant to the drug quantities attributed to him for


sentencing purposes.

According to Bracmort, given the jurys

findings that less than 100 grams of PCP and less than 28 grams
of cocaine base were attributable to him, the court had an
*

That the Government did not directly link Bracmort to


Toliver simply is not legally significant. See United States v.
Nunez, 432 F.3d 573, 578 (4th Cir. 2005) (explaining that one
may be a member of a conspiracy without knowing its full scope,
or all its members, and without taking part in the full range of
its activities or over the whole period of its existence
(internal quotation marks omitted)).

obligation to engage in fact finding to determine the specific


amounts of drugs attributable to Mr. Bracmort.
Br. at 15).

(Appellants

And because the court did not make any factual

determinations on this issue, Bracmort asserts the court lacked


a

sufficient

calculating

basis
his

for

base

using

the

offense

larger

level,

imposition of an unreasonable sentence.


Generally,

this

court

drug

thus

quantities

resulting

in

for
the

We disagree.

reviews

sentence

for

reasonableness, using an abuse of discretion standard of review.


Gall v. United States, 552 U.S. 38, 51 (2007).

In reviewing the

district courts calculations under the Guidelines, we review


the district courts legal conclusions de novo and its factual
findings for clear error, United States v. Manigan, 592 F.3d
621, 626 (4th Cir. 2010) (internal quotation marks omitted), and
will find clear error only if, on the entire evidence, we are
left with the definite and firm conviction that a mistake has
been

committed.

Id.

alteration omitted).
district

courts

at

631

(internal

quotation

marks

and

However, because he did not object to the

failure

to

make

specific

factual

findings

regarding the attributable drug quantities, Bracmorts claim is


reviewed for plain error.

United States v. Blatstein, 482 F.3d

725, 731 (4th Cir. 2007).


Pursuant
sentencing

court

to
may

Fed.
accept

R.
any
5

Crim.

P.

undisputed

32(i)(3)(A),
portion

of

the
the

presentence

report

as

undisputed

failure

finding

to

object

of

fact.

to

the

Given

Bracmorts

probation

officers

recommendation as to the drug quantities attributable to him, we


discern no error, let alone plain error, in the district courts
reliance

on

the

presentence

report

to

support

this

factual

determination.
We further reject Bracmorts contention that the court
was obligated to make express factual findings even in the
absence of an objection to the presentence report because the
attributable drug quantities were greater than those found by
the jury.

The jurys findings that Bracmort was accountable for

less than 28 grams of crack cocaine and less than 100 grams of
PCP, made under a reasonable doubt standard, were relevant to
whether

Bracmort

would

sentencing

provisions

quantities

of

be

subject

applicable

narcotics.

This

to

to
is

the

enhanced

crimes
plainly

statutory

involving
distinct

larger

from

the

courts analysis of the attributable drug quantities as relevant


to sentencing.

See United States v. Young, 609 F.3d 348, 357

(4th Cir. 2010) (But beyond establishing the maximum sentence,


the jurys drug-quantity determination placed no constraint on
the

district

courts

sentencing.).
sentencing
government

And

court
could

authority
as

is

we

free

establish

to

further
to

find

recognized

consider
a
6

facts

higher

relevant

to

Young,

the

whether

the

in
.

quantity

under

preponderance of the evidence standard.

609 F.3d at 357.

To

be sure, the Young court discussed the need, in such situations,


for

the

sentencing

court

to

make

relevant

factual

findings

based on the courts view of the preponderance of the evidence.


Id.

However, in light of Bracmorts failure to object to the

presentence report, the court sufficiently satisfied this duty


by adopting the drug quantity determinations set forth therein.
Cf. United States v. Davis, 679 F.3d 177, 180, 187 (4th Cir.
2012) (explaining that, where defendant objects to application
of specific Guideline, the sentencing court must make factual
findings as to disputed conduct).

We thus reject this challenge

to Bracmorts sentence.
For these reasons, we affirm the criminal judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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