United States v. Ramirez-Jimenez

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 1, 2006
• Docket: 05-1291
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS September 1, 2006 TENTH CIRCUIT Elisabeth A. Shumaker __________________________ Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee,

v. No. 05-1291 (D . Colo.) M AN UEL RAM IREZ-JIM ENEZ, (D.Ct. No. 04-CR-58 RB)

Defendant-Appellant. ____________________________

OR D ER AND JUDGM ENT *

Before TA CH A, Chief Circuit Judge, and BARRETT and BROR BY, Senior Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9(G). The case is

therefore ordered submitted without oral argument.

Appellant M anuel Ramirez-Jimenez pled guilty to illegal reentry into the

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. United States of a deported alien previously convicted of an aggravated felony, in

violation of 8 U.S.C. § 1326(a) and (b)(2). He now appeals his forty-one-month

sentence, contending his sentence is unreasonable under 18 U.S.C. § 3553(a) due

to the district court’s failure to: 1) properly consider the mitigation evidence he

presented; 2) articulate the factors in § 3553 on which it relied in sentencing; and

3) consider the disparity of his sentence w ith that of another individual with more

prior convictions. He further appeals, claiming the district court impermissibly

“double counted” his prior conviction under United States Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”) § 2L1.2 in calculating both his offense level and

criminal history. W e exercise jurisdiction pursuant to 18 U.S.C. § 3742 and 28

U.S.C. § 1291 and affirm M r. Ramirez-Jimenez’s conviction and sentence.

On April 1, 2005, M r. Ramirez-Jimenez pled guilty to illegal reentry into

the United States of a deported alien previously convicted of an aggravated

felony. Following his guilty plea, a probation officer prepared a presentence

report, calculating his base offense level at eight under U.S.S.G. § 2L1.2(a), and

applying a sixteen-level upward adjustment based on his prior conviction relating

to a felony drug trafficking offense for which the sentence imposed exceeded

thirteen months, pursuant to U.S.S.G. § 2L1.2(b)(1)(A). 1 After applying a three-

1 M r. Ramirez-Jimenez first pled guilty to one count of possession of marijuana with intent to distribute and one count of possession of cocaine with (continued...)

-2- level downward adjustment for acceptance of responsibility and factoring in M r.

Ramirez-Jimenez’s criminal history at Category II, the probation officer

calculated his sentencing range at forty-one to fifty-one months imprisonment.

However, based on the fact M r. Ramirez-Jimenez lived in the United States for

more than twenty-five years and illegally returned to the United States for the

sole purpose of caring for his two children, the probation officer recommended a

sentence of only twenty-two months imprisonment.

M r. Ramirez-Jimenez did not file any written objections to the presentence

report. However, one day before the sentencing hearing, he filed a motion for

downward departure, noting he did not object to the Guidelines calculation in the

presentence report, but was requesting a reduction of his sentence below the

advisory Guidelines range based on mitigating circumstances. In support of his

motion, M r. Ramirez-Jimenez’s attorney argued a reduction was warranted based

on: 1) cultural assimilation grounds, given he lived in the United States over half

his lifetime; 2) his reentry into the United States for the laudable purpose of

1 (...continued) intent to distribute, which resulted in a sentence of ten months imprisonment and three years supervised release; but proceeded to trial on one count of carrying a firearm in relation to a drug trafficking offense. W hen M r. Ramirez-Jimenez later waived his right to a jury trial on the third count of carrying a firearm in relation to a drug trafficking offense and pled guilty, he received a sixty-month sentence, and the other two sentences for the drug trafficking counts w ere reduced to six months imprisonment.

-3- caring for his children, who are United States citizens; 3) his long-time adherence

to the laws of the United States, with the exception of his prior conviction; 4) the

fact a sentence of time already served would be consistent with other sentences

for similar offenders; and 5) the fact his plea agreement entered into during

prosecution of his prior offense was conditioned, in part, on the United States

government’s promise to assist him in remaining in this country in exchange for

his help in the investigation and prosecution of others, but that the government

never fulfilled its promise.

In making these arguments at the sentencing hearing, M r. Ramirez-

Jimenez’s attorney stated M r. Ramirez-Jimenez was not collaterally attacking his

prior conviction but bringing the issue up in order to apprise the court of his

assistance to the government during his prior conviction. W hen the district court

asked how the matter fit within the 18 U.S.C. §3553(a) factors, his counsel

explained it showed M r. Ramirez-Jimenez’s extreme helpfulness to law

enforcement and “that’s as far as it goes.” After M r. Ramirez-Jimenez’s counsel

suggested his prior single wrongful act committed many years ago should not

continue to blight his life, the district court noted double counting of the prior

conviction in both the computation of the offense level and the criminal history

category was lawful, to which M r. Ramirez-Jimenez’s counsel stated, “I am not

arguing with the fact that the guidelines don’t properly take that into

-4- consideration, the fact that it is a double penalty, but what I am arguing, your

Honor, is the larger context of [M r. Ramirez-Jimenez’s] life.” M r. Ramirez-

Jimenez’s attorney then pointed out M r. Ramirez-Jimenez had “been law

abiding,” and only committed the offense of illegal reentry to provide for his

children. Finally, M r. Ramirez-Jimenez’s counsel complained about the disparity

of his sentence as compared to at least one other defendant in another case

presided over by a different judge in which the defendant received forty-one

months imprisonment even though he had a more egregious criminal history of

three prior offenses, including sexual assault. 2

In rendering the sentence, the district court exhaustively articulated the

relevant matters of fact and law it considered, including the plea agreement of the

parties; the nature and circumstances of the offense, “focusing on its real

conduct,” as required by the court in United States v. Booker 3 ; M r. Ramirez-

Jimenez’s history and characteristics; the sentence permitted by law under 18

U.S.C. § 3551; the presentence report and addendum; the purposes and goals of

sentencing under 18 U.S.C. § 3553; the factors which must be considered under

2 The government cursorily explained it did not oppose the motion for downward departure, given the initial prosecutor in the case resigned his position and left no documentation as to whether an agreement was entered into concerning time M r. Ramirez-Jimenez had already served in custody. 3 543 U.S. 220 (2005).

-5- 18 U.S.C. §§ 3582(a) and 3553(a)(1)-(7); the applicable provisions of the

advisory Guidelines; the kind of sentence and sentencing range established

thereunder, together with § 3553(a)(4); the important need to avoid unwarranted

sentencing disparities and to ensure similar sentences for those committing

similar crimes; the pertinent policy statements of the United States Sentencing

Commission; the critical need to impose sentences under § 3553(a)(2) to reflect

the seriousness of the offense, promote respect for the law, provide just

punishment for the offense, afford adequate deterrence by protecting the public

from further crimes committed by the defendant or other defendants similarly

situated and inclined, and provide needed educational or vocational training or

other correctional treatment; the Congressional goal of fairness and uniformity in

sentencing and the principle under § 3553(a) of imposing a sentence sufficient but

not greater than necessary to achieve those goals; the positions of the probation

department, the government, defense counsel, and the defendant himself; the

motion for downward departure based on cultural assimilation grounds; and the

authorities cited by the parties in their arguments to the court.

Next, the district court articulated why a sentence at the bottom of the

Guidelines range at forty-one months would meet these factors and other relevant

criteria it considered. The district court explicitly stated that while it had

discretion to depart from the advisory Guidelines range, no good cause or reason

-6- existed and noted M r. Ramirez-Jimenez committed a serious offense and then

entered the country illegally while on supervised release, demonstrating he

learned nothing from his experience. The district court also stated the advisory

Guidelines logically and fairly applied to M r. Ramirez-Jimenez and his

circumstance, and explained a forty-one-month sentence at the bottom of the

Guidelines range would avoid unwarranted sentencing disparities in ensuring

similar sentences for those who commit similar crimes in similar ways. The

district court further explained it imposed a forty-one-month sentence in a case

“almost on all fours” w ith M r. Ramirez-Jimenez’s case only the w eek before. In

addition, the district court re-articulated the other sentencing factors in § 3553(a),

pointing out, in part, that a forty-one-month sentence in this case would promote

respect for the law , provide just punishment for the offense, hopefully afford

adequate deterrence by protecting the public from M r. Ramirez-Jimenez or other

defendants similarly situated and inclined to commit further crimes, and provide

M r. Ramirez-Jimenez with needed vocational training or other correctional

treatment. W hile the district court noted M r. Ramirez-Jimenez’s love and

concern for his children were admirable, it questioned where his love and concern

for his children were at the time he committed the prior drug-related felony

offense. Finally, the district court discounted M r. Ramirez-Jimenez’s argument

mitigation was warranted because he lived a law-abiding life in this country for

an extended period of time, pointing out abiding the law is a minimum

-7- requirement of all persons in this country. The district court then denied M r.

Ramirez-Jimenez’s motion and sentenced him to forty-one months imprisonment.

On appeal, M r. Ramirez-Jimenez continues to argue his sentence is

unreasonable under § 3553 because of the mitigation evidence he presented and

the fact his sentence is dissimilar to at least one defendant sentenced in another

case. Astonishingly, he also contends the district court failed “to articulate the

factors upon which it relied for sentencing under 18 U.S.C. § 3553(a).” For the

first time on appeal, M r. Ramirez-Jimenez also claims the district court erred “by

rejecting any consideration of ‘double counting’ which resulted in unwarranted

sentencing disparities.” Thus, while M r. Ramirez-Jimenez’s counsel repeatedly

represented M r. Ramirez-Jimenez did not object to the Guidelines calculation of

forty-one to fifty-one months imprisonment, he is now claiming the district court

impermissibly double counted his prior conviction, which resulted in the

sentencing disparity he claims. 4

W hile w e recognize the Guidelines are now advisory rather than mandatory

4 In its arguments in response to M r. Ramirez-Jimenez’s appeal, the government suggests he untimely filed his appeal. W e disagree. The district court docket shows the criminal judgment was entered June 13, 2005. The date of entry is the beginning point for w hen the time period begins to run. See Fed. R. App. P. 4(b)(6). The ten-day filing deadline expired June 27, 2005. See Fed. R. App. P. 4(b)(1)(A) and 26(a)(2). Because M r. Ramirez-Jimenez filed his appeal on June 21, 2005, it was timely filed before the expiration of the filing deadline.

-8- under the principles announced in Booker, they continue to be a factor the district

court must consider in imposing a sentence. See United States v. Kristl, 437 F.3d

1050, 1053 (10th Cir. 2006) (per curiam). Since Booker, we review for

reasonableness the ultimate sentence imposed. Id. W e require reasonableness in

two respects – “the length of the sentence, as well as the method by which the

sentence was calculated.” Id. at 1055. If the district court “properly considers

the relevant Guidelines range and sentences the defendant within that range, the

sentence is presumptively reasonable,” but “[t]he defendant may rebut this

presumption by demonstrating that the sentence is unreasonable in light of the

other sentencing factors laid out in § 3553(a).” Id. In determining whether the

district court properly considered the applicable G uidelines range, we review its

legal conclusions de novo and its factual findings for clear error. Id. at 1054.

W e begin with M r. Ramirez-Jimenez’s double counting argument. He did

not raise the issue before the district court, although the district court itself

briefly referred to the lawfulness of double counting at the sentencing hearing.

W e have long declined to rule on issues not raised in the district court when the

defendant cannot show an impediment precluded his raising the issue or that the

ground not raised constituted plain error resulting in manifest injustice. See

United States v. Orr, 864 F.2d 1505, 1508 (10th Cir. 1988). However, even if w e

considered the issue in this case, the application note to § 2L1.2 of the Guidelines

-9- expressly states “[a] conviction taken into account under subsection (b)(1) [i.e.,

for drug trafficking crimes] is not excluded from consideration of whether that

conviction receives criminal history points ....” See cmt. n.6. W e have generally

upheld the use of prior convictions to calculate both criminal history categories

and sentence enhancements where the Guidelines permit such application, and

M r. Ramirez-Jimenez’s argument does not persuade us we should question our

clear and long-held precedent. See United States v. Alessandroni, 982 F.2d 419,

423 (10th Cir. 1992); United States v. Florentino, 922 F.2d 1443, 1447-48 (10th

Cir. 1990). M oreover, while this circuit has not directly considered whether

§ 2L1.2 allows impermissible double counting in a published opinion, other

circuits have addressed M r. Ramirez-Jimenez’s argument and soundly rejected it

because the application note to § 2L1.2 expressly allows a sixteen-level

enhancement in addition to criminal history points for such a conviction. See

United States v. Hernandez-Fierros, 453 F.3d 309, 312-13 (6th Cir. 2006); United

States v. M artinez, 434 F.3d 1318, 1323 n.4 (11th Cir.), cert. denied, 126 S. Ct.

2946 (2006); United States v. Torres-Echavarria, 129 F.3d 692, 698-99 (2d Cir.

1997). Under these circumstances, it was not unreasonable for the district court

to defer to § 2L1.2 and its application note and follow the same approach of using

M r. Ramirez-Jimenez’s prior offense to both calculate his criminal history points

and enhance his offense level. Because § 2L1.2 pertains to like offenders who

illegally reenter the United States after deportation and conviction for an

-10- aggravated felony, M r. Ramirez-Jimenez has not established the district court

erred “by rejecting any consideration of ‘double counting’ which resulted in

unwarranted sentencing disparities.”

W e next proceed to M r. Ramirez-Jimenez’s other arguments supporting his

claim his sentence is unreasonable because circumstances warrant a reduction

below the Guidelines range. In this case, after thoroughly considering the

sentencing factors in 18 U.S.C. § 3553, as well as the applicable Guidelines, the

facts of the case, M r. Ramirez-Jimenez’s criminal history, and other relevant

criteria, the district court refused to depart downward and concluded a forty-one-

month sentence “logically and fairly applied” to M r. Ramirez-Jimenez “in his

circumstances.” Given the district court “properly consider[ed] the relevant

Guidelines range and sentence[d] the defendant within that range, the sentence is

presumptively reasonable,” and it is up to M r. Ramirez-Jimenez to rebut this

presumption by demonstrating his sentence is “unreasonable in light of the other

sentencing factors laid out in § 3553(a).” Kristl, 437 F.3d at 1055.

In this case, M r. Ramirez-Jimenez has not shown why he should be treated

differently than others who, like him, illegally reentered the country after

conviction for a serious felony drug trafficking offense and were sentenced within

the applicable Guidelines range. First, the Guidelines clearly advise “family ties

-11- and responsibilities are not ordinarily relevant in determining whether a departure

may be warranted,” U .S.S.G. § 5H1.6, and we have determined family

responsibilities are a discouraged factor which the district court should consider

only in the most extraordinary cases. See United States v. M cClatchey, 316 F.3d

1122, 1130 (10th C ir. 2003). Similarly, his argument he abided by our laws

during his stay in the United States is essentially an aberrant behavior argument

under U.S.S.G. § 5K2.20, which recommends a sentence outside of the Guidelines

range where the defendant lived an otherwise law-abiding life, other than

commission of the instant crime. See U.S.S.G. § 5K2.20(b). However, the same

Guidelines section advises aberrant behavior should not be considered if the

defendant, like here, has a prior federal felony conviction. See U.S.S.G.

§ 5K2.20(c)(4). Under the circumstances presented and the applicable law, it was

not unreasonable for the district court to determine a sentence imposed at the

bottom of the applicable G uidelines range sufficiently reflected the factors in

§ 3553, and M r. Ramirez-Jimenez has not otherwise demonstrated his sentence is

unreasonable.

Next, M r. Ramirez-Jimenez’s verbal example of another defendant in a

different case who received the same sentence but allegedly possessed a more

egregious criminal history is not enough to establish disparity of sentencing in

this case for the purpose of showing M r. Ramirez-Jimenez’s sentence is

-12- unreasonable. First, we have held that “[w]hile similar offenders engaged in

similar conduct should be sentenced equivalently, disparate sentences are allowed

where the disparity is explicable by the facts on the record.” United States v.

Davis, 437 F.3d 989, 997 (10th Cir.) (quotation marks and citation omitted), cert.

denied, 126 S. Ct. 1935 (2006). In this case, M r. Ramirez-Jimenez has failed to

identify the characteristics of the other defendant, provide an account of his

instant offense and each of his prior offenses, identify his total criminal history

score, or otherwise present sufficient facts surrounding that defendant’s record for

the purpose of using his sentence as an equivalent comparison with M r. Ramirez-

Jimenez’s sentence.

In addition, consideration of sentencing disparities among defendants w ith

similar records found guilty of similar conduct is but one of several factors under

§ 3553(a) for a court to consider in determining a reasonable sentence. See

United States v. M orales-Chaires, 430 F.3d 1124, 1131 (10th Cir. 2005). In this

case, the district court considered the disparity of sentencing factors, together

with the other factors in § 3553(a), and was not required to single out or assign

more weight to that factor than any other factor. Finally, given M r. Ramirez-

Jimenez’s sentence is at the low end of the presumptively reasonable Guidelines

range, and the district court in this case carefully considered and rejected the

disparity of sentencing issue presented and, in fact, provided an explicit example

-13- of a forty-one-month sentence it imposed in a case “almost on all fours” w ith M r.

Ramirez-Jimenez’s, w e have no cause to conclude the sentence is unreasonable

for disparity of sentencing purposes.

For these reasons, we A FFIRM M r. Ramirez-Jimenez’s conviction and

sentence.

Entered by the C ourt:

W ADE BRO RBY United States Circuit Judge

-14-