United States v. Ramírez

708 F.3d 295
CourtCourt of Appeals for the First Circuit
DecidedFebruary 27, 2013
DocketNos. 11-2416, 11-2417
StatusPublished
Cited by5 cases

This text of 708 F.3d 295 (United States v. Ramírez) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Ramírez, 708 F.3d 295 (1st Cir. 2013).

Opinion

THOMPSON, Circuit Judge.

An investigation of gang-related drug trafficking by the Federal Bureau of Investigation (“FBI”) led to the arrest of Appellant Rigoberto Ramírez (“Ramirez”), a key supplier of crack cocaine in his community in Chelsea, Massachusetts. Ramirez was indicted, pled guilty to one count of conspiracy to distribute crack cocaine and two counts of distribution of crack cocaine, and received a thirteen-year sentence. Ramirez now challenges his sentence on both substantive and procedural grounds, claiming that his prior felony conviction did not warrant the career offender enhancement and that the district court erred in denying his request for resentencing and failing to adequately explain the reasons for his sentence. After careful review, we remand to the district court for further consideration.

BACKGROUND

The Drug Deals

Beginning sometime in 2009, an FBI gang task force began investigating drug trafficking by suspected gang members operating in Chelsea, Massachusetts. Ramirez and co-defendant Paul Rodriguez became targets of that investigation. Ramirez, although not a gang member himself, was considered a significant source of the crack cocaine business in Chelsea and used gang members to facilitate it. One of those gang members was Rodriguez, a member of “Neta,” a violent prison gang whose members retain their allegiance after release from prison.

There were two drug deals that eventually gave rise to the federal charges against Ramírez. The first happened in June 2009 when Ramirez and Rodriguez sold 1.5 grams of crack cocaine to a cooperating witness (“CW”) in a Walgreens parking lot. The second occurred the following month when Ramirez sold the same CW three more grams of crack cocaine. During that transaction, the CW handed the money used to purchase the drugs to a male passenger, named “BR,” who was under 18 years old and sitting in the front passenger seat. BR counted the money to confirm it was the correct amount for the drugs purchased.

The Indictment

In January 2010, a federal grand jury in Massachusetts indicted Ramirez on one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count I), and two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts II & IV). Count IV of the indictment added that Ramirez knowingly and intentionally employed, hired, used, persuaded, induced and enticed a person under 18 years of age to violate § 841(a)(1). Following the indictment, Ramirez was arrested and entered a plea of not guilty. A little over a year later, he pled guilty to all charges (more on the change-of-plea hearing later).

Sentencing

The pre-sentence report (“PSR”) first determined that the offense level was 15.1 That offense level, combined with Ramirez’s criminal history points (placing him in category V) would have set the Sentencing Guidelines (the “Guidelines”) range at 37 to 46 months. The PSR, however, further determined that Ramirez should receive an enhanced sentence as a career offender under § 4B1.1. The PSR based the career offender enhancement on two [299]*299prior convictions that — according to the PSR — satisfied the definition of a “crime of violence” set forth in § 4B1.2(a): a 1993 Massachusetts conviction for manufacturing, distributing, or dispensing a Class A substance in a drug-free school zone, and a 1997 Florida conviction for burglary of a dwelling. Applying the enhancement, the PSR explained that § 4B1.1 directs the offense level be determined by the statutory maximum for the offenses of conviction and that the statutory maximum in this case was forty years (or twice the otherwise applicable statutory maximum penalty of twenty years) because Ramirez used a juvenile in violation of 21 U.S.C. § 861. The career offender total offense level of 34 was reduced by three levels under U.S.S.G. § 3El.l(a) and (b) for acceptance of responsibility resulting in a career offender total offense level of 31. According to the PSR, a total offense level of 31 and a career offender criminal history category of VI set the guidelines range at 188 to 235 months.2

When it came time for sentencing, Ramirez objected that burglary of a dwelling under Florida law did not qualify as a “crime of violence” under the career offender guideline to warrant a sentence enhancement. Ramirez further objected to any sentence enhancement under 21 U.S.C. § 861(b) for use of a person under 18 since he did not admit at the change-of-plea hearing that he knew BR was a minor. Lastly, Ramirez claimed the crime of violence provision’s residual clause, § 4B1.2(a)(2), was unconstitutionally vague.3

At sentencing, the district court concluded that Ramirez’s Florida burglary of a dwelling conviction qualified as a “crime of violence” under § 4R1.1. The district court adopted the PSR’s calculations, finding that Ramirez’s career offender total offense level was 31 and his career offender criminal history category was VI, resulting in a Guidelines sentencing range of 188 to 235 months. The district court sentenced him to thirteen years imprisonment (or 156 months) and six years of supervised release.

Post-Sentencing

After sentencing, Ramirez moved to correct the judgment and for resentencing, arguing that because the district court credited Ramirez’s statement at the change-of-plea hearing that he did not know BR was a minor, the enhancement under 21 U.S.C. § 861(b) should not apply. Without the enhancement, Ramirez argued, the correct guidelines sentencing range was 151 to 188 months, the term of supervised release should be reduced from six to three years, and resentencing was warranted. The court agreed in part with Ramírez. The district court reduced the term of supervised release to three years, but ruled that “there is no need for resen-tencing.” With the exception of the reduction in the term of supervised release, the [300]*300sentence remained unchanged. Ramirez now appeals.

DISCUSSION

Prior Offense as a “Crime of Violence”

Ramirez first contends that burglary of a dwelling does not qualify as a “crime of violence” under § 4B 1.2(a) of the Guidelines. We review de novo the classification of a prior offense as a crime of violence under the Guidelines. United States v. Small, 640 F.3d 425, 426 (1st Cir.2011).

To determine whether a defendant’s prior crime qualifies as a crime of violence, we take a categorical approach. See, e.g., United States v. Jonas, 689 F.3d 83, 86 (1st Cir.2012) (citing Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011)). Our focus is on “the legal definition of the crime and not the defendant’s particular conduct in committing the offense.” United States v. Davis, 676 F.3d 3, 7 (1st Cir.2012). We first identify the offense of conviction and look to see whether the statutory definition of that offense meets the requirements of the Guidelines’ definition of a “crime of violence” under § 4B1.2(a). Davis,

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Bluebook (online)
708 F.3d 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ramirez-ca1-2013.