United States v. Ramirez-Navas

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 20, 2024
• Docket: 23-2141
• Status: Unpublished

Opinion

Appellate Case: 23-2141 Document: 010111097183 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-2141 (D.C. No. 2:23-CR-00443-MIS-1) FREDY AUGUSTO RAMIREZ-NAVAS, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges. _________________________________

Fredy Augusto Ramirez-Navas pleaded guilty, without benefit of a plea

agreement, to illegal reentry after being previously removed following a felony

conviction, in violation of 8 U.S.C. § 1326(a)(1) and (b)(1). The district court

sentenced Mr. Ramirez-Navas to an above-guideline sentence of 48 months, to be

followed by a two-year term of supervised release. Mr. Ramirez-Navas now appeals,

arguing the district court erred in refusing to accept the parties’ plea agreement, and

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-2141 Document: 010111097183 Date Filed: 08/20/2024 Page: 2

also challenging the procedural and substantive reasonableness of his sentence.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the

district court.

I

On January 25, 2023, United States Border Patrol (USBP) agents found

Mr. Ramirez-Navas in Doña Ana County near Santa Teresa, New Mexico.

Mr. Ramirez-Navas admitted he was a citizen of Guatemala and lacked legal

authorization to enter or remain in the United States. The USBP agents confirmed

this information and determined that Mr. Ramirez-Navas was first ordered removed

or deported from the United States on August 9, 2017. The USBP agents also

determined that in September 2021, Mr. Ramirez-Navas was convicted of illegal

reentry of a removed alien.

Following his arrest, a criminal complaint was filed against

Mr. Ramirez-Navas charging him with illegal reentry after being previously deported

following a felony conviction, in violation of 8 U.S.C. § 1326(a)(1) and (b)(1).

In April 2023, Mr. Ramirez-Navas and the government entered into what was

titled a “FAST TRACK PLEA AGREEMENT.” R. vol. I at 10. Under the terms of

that agreement, Mr. Ramirez-Navas agreed to plead guilty to an information charging

him with illegal reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and

(b). The parties also agreed, pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C), “to a sentence within the resulting sentencing guideline range after the

application of adjustments for specific offense characteristics,” “minus a downward

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adjustment for acceptance of responsibility, and minus a two-level downward

departure pursuant to USSG § 5K3.1” in accordance with the District of New

Mexico’s early disposition program. Id. at 13. The magistrate judge held a change

of plea hearing but deferred acceptance of the plea agreement.

A presentence investigation report (PSR) was prepared and submitted to the

district court and the parties. The PSR calculated a total offense level of 8, a criminal

history score of 7, a criminal history category of IV, and an advisory guideline

imprisonment range of 10 to 16 months. In recounting Mr. Ramirez-Navas’s

criminal history, the PSR noted that, in addition to his 2021 federal conviction for

reentry of a removed alien, Mr. Ramirez-Navas had three prior convictions from the

State of Texas: a 2019 conviction for assault; a 2021 conviction for criminal trespass

of a habitation; and a 2022 conviction for assault causing bodily injury to a family

member.

The PSR described the conduct underlying each of these three state

convictions. With respect to the 2019 assault conviction, the PSR noted, in relevant

part, that the victim was Mr. Ramirez-Navas’s brother-in-law, Rodrigo Molina.

Mr. Molina reported to the police that Mr. Ramirez-Navas pushed him against a wall

and then punched him in the face multiple times, causing him to blackout. The PSR

noted that Mr. Molina sustained numerous injuries to his face, including a laceration

over his right eye, bruises to his eyes, a swollen cheek and upper lip, and a bloody

nose.

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As for the 2021 criminal trespass conviction, the PSR noted, in relevant part,

that on November 21, 2020, Mr. Ramirez-Navas knocked on the door of an apartment

and, when the victim answered, forced his way into the apartment asking for an

individual by the name of Guillermo. The victim informed Mr. Ramirez-Navas that

Guillermo no longer lived in the apartment. That led to an altercation between

Mr. Ramirez-Navas and the victim. The victim’s roommate was able to separate the

two men and Mr. Ramirez-Navas left the apartment. Shortly thereafter, however,

Mr. Ramirez-Navas reentered the apartment on his own and began attacking the

victim. More specifically, Mr. Ramirez-Navas threatened to kill the victim, then

lunged at him with a large kitchen knife and stabbed him in the left side of his chest.

After doing so, Mr. Ramirez-Navas then grabbed the victim’s neck and began

choking him with one hand, while still holding the knife in his other hand. The

victim fell onto a bed and Mr. Ramirez-Navas got on top of the victim and continued

choking him. Only when the victim’s roommate stated he was calling the police did

Mr. Ramirez-Navas drop the knife and leave the apartment. Mr. Ramirez-Navas was

initially charged with the felony offense of burglary of a habitation with intent to

commit assault in the first degree, but ultimately pleaded guilty to the lesser included

offense of criminal trespass of a habitation.

Finally, with respect to the 2022 assault conviction, the PSR noted that in late

January 2022, Mr. Ramirez-Navas, with the assistance of his brother, assaulted

Mr. Molina by punching him repeatedly in the face and body and stabbing him in the

abdomen (the PSR noted it was unclear which of the two men was responsible for

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stabbing Mr. Molina). When police responded to the scene of the crime and began

questioning Mr. Ramirez-Navas and his brother, Mr. Ramirez-Navas attempted to

flee on foot and then, when apprehended, attempted to resist arrest. During a

post-arrest search of Mr. Ramirez-Navas’s truck, law enforcement officers found a

kitchen knife covered by a sock. Mr. Ramirez-Navas’s common-law wife, who was

Mr. Molina’s sister, told the police she was fearful of Mr. Ramirez-Navas retaliating

against her and her family for cooperating with the police.

Mr. Ramirez-Navas objected to the accuracy of the PSR’s descriptions of the

conduct underlying his three state criminal convictions and provided his own

unsworn statements refuting those descriptions. The government responded to

Mr. Ramirez-Navas’s objections, submitted police reports for all three prior offenses,

and submitted additional photographic evidence relating to the 2020 and 2022

offenses. The government argued that the police reports and evidence confirmed that

the PSR’s descriptions of the prior offenses were accurate.

At the outset of the sentencing hearing, the district court addressed

Mr. Ramirez-Navas’s objections to the PSR. Mr. Ramirez-Navas argued only that

the police reports from his three prior offenses constituted inadmissible hearsay. The

district court, after determining the reports were obtained by the government directly

from the Austin (Texas) Police Department, overruled Mr. Ramirez-Navas’s hearsay

objections. In doing so, the district court concluded the police reports and supporting

evidence bore sufficient indicia of reliability. In particular, the district court noted

the police reports were very detailed and included consistent statements from

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multiple witnesses. The district court also found that Mr. Ramirez-Navas’s unsworn

statements made through his counsel in opposition to the facts recounted in the PSR

were not reliable. The district court in turn emphasized that it was “not considering

any of the unpled-to facts as part of a conviction in this case,” but rather “would

consider it only pursuant to the 3553(a) factors, the history and characteristics of the

defendant.” R. vol. III at 19.

The district court then advised the parties that it was rejecting the Rule

11(c)(1)(C) plea agreement because, in its view, the parties’ proposed sentence of 16

months’ imprisonment was not “sufficient . . . under the 3535(a) factors.” Id. at 27.

Although the district court advised Mr. Ramirez-Navas that he could withdraw his

plea, Mr. Ramirez-Navas chose to plead guilty without benefit of the plea agreement

and to proceed with sentencing.

In announcing its sentence, the district court found the PSR’s descriptions of

the prior offenses “[we]re accurate” and “that the Government . . . present[ed]

sufficient evidence that ha[d] indicia of reliability to show that these facts more

likely than not did occur.” Id. at 37. The district court also noted that Mr.

Ramirez-Navas quickly returned to the United States “after multiple violent attacks

against others, including two cases that involved stabbing.” Id. Further, the district

court emphasized that the offense of conviction was Mr. Ramirez-Navas’s “fifth

conviction in the United States, his second reentry, and [that] many of his prior cases

involved violence.” Id. at 38. In addition, the district court found that a

within-Guideline sentence would not “reflect the seriousness of this offense, coming

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back into the country after multiple violent convictions,” would not “promote any

respect for the law,” and would not “provide just punishment for the offense.” Id.

at 38–39. Ultimately, the district court sentenced Mr. Ramirez-Navas to a term of

imprisonment of 48 months, to be followed by a two-year term of supervised release.

Following the entry of final judgment, Mr. Ramirez-Navas filed a timely

notice of appeal.

II

A

In his first issue on appeal, Mr. Ramirez-Navas argues that the district court

erred in rejecting the parties’ Rule 11(c)(1)(C) plea agreement based “solely upon

hearsay statements that were not sufficiently reliable to be considered at sentencing.”

Aplt. Br. at 5. We disagree.

A district court “has broad discretion to reject” a Rule 11(c)(1)(C) plea

agreement “if (among other things) the court considers the agreement to be unfair.”

United States v. Aragon, 922 F.3d 1102, 1114 n.2 (10th Cir. 2019) (Holmes, J.,

concurring); see United States v. White, 765 F.3d 1240, 1248 (10th Cir. 2014) (“Rule

11(c)(1)(C) permits the defendant and the prosecutor to agree that a specific sentence

is appropriate, but that agreement does not discharge the district court’s independent

obligation to exercise its discretion.” (quoting Freeman v. United States, 564 U.S.

522, 529 (2011) (plurality opinion))). Only if a district court accepts a Rule

11(c)(1)(C) plea agreement is it bound by the terms of that agreement. See Fed. R.

Crim. P. 11(c)(1)(C) (noting that a plea agreement for a specific sentence or

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sentencing range under that subsection “binds the court once the court accepts the

plea agreement”).

A district court may, “[i]n resolving any dispute concerning a factor important

to the sentencing determination,” including the acceptance of a Rule 11(c)(1)(C) plea

agreement, “consider relevant information without regard to its admissibility under

the rules of evidence applicable at trial, provided that the information has sufficient

indicia of reliability to support its probable accuracy.” USSG § 6A1.3(a). Under this

rule, we have held that “[h]earsay statements . . . may be considered . . . if they bear

some minimal indicia of reliability.’” United States v. Montano, – F.4th –, 2024 WL

3504511 at *7 (10th Cir. July 23, 2024) (quoting United States v. Damato, 672 F.3d

832, 847 (10th Cir. 2012)).

“We review for clear error a district court’s assessment of the reliability of

evidence” presented at sentencing. United States v. Martinez, 824 F.3d 1256, 1261

(10th Cir. 2016). To constitute clear error, the district court’s determination must be

found to be “simply not plausible or permissible in light of the entire record on

appeal, remembering that we are not free to substitute our judgment for that of the

district” court. United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quoting

United States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003)).

The district court in this case determined the police reports that formed the

basis for the PSR’s factual descriptions of Mr. Ramirez-Navas’s three prior crimes

bore sufficient indicia of reliability because (a) they included detailed descriptions of

the events giving rise to the crimes, (b) they also contained statements from multiple

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witnesses that corroborated each other, and (c) two of the reports (from 2020 and

2022) were further corroborated by photographic evidence submitted by the

government.

After reviewing the record on appeal, we conclude the district court did not

commit clear error in assessing the reliability of the police reports. As the district

court noted, all three police reports contained detailed descriptions of the events

leading to Mr. Ramirez-Navas’s arrests, including, in each of the three instances,

personal observations from the responding police officers regarding the crime scenes,

the physical state of the victims,1 and witness statements.2 In all three instances, the

officers’ observations, the physical evidence, and the witness statements largely

corroborated each other. Finally, the police reports related to the 2020 and 2022

offenses were further corroborated by photographic evidence that was obtained by

the government from the Austin Police Department and submitted to the district

court. That evidence included photographs of the stab wound suffered by the victim

of the 2020 assault, crime scene photographs from the 2022 offense, photographs of

1 For example, one of the two officers who responded to the scene of the 2019 assault noted in the report that he spoke with the victim and observed multiple injuries on the victim’s face, including a large, bleeding laceration over his right eye, bruises on or near both eyes, a bloody nose, and swelling on his right cheek and upper lip. 2 There were no eyewitnesses to the 2019 assault, but the victim in the 2019 assault reported that Mr. Ramirez-Navas pushed him against a wall and struck him in the face multiple times with a closed fist, causing him to blackout. As for the 2020 and 2022 offenses, officers spoke to the victims, as well as eyewitnesses to the offenses. 9 Appellate Case: 23-2141 Document: 010111097183 Date Filed: 08/20/2024 Page: 10

the injuries suffered by the victim of the 2022 offense, and photographs of

Mr. Ramirez-Navas at the scene of the 2022 offense, including a photograph of

blood on the outside of his right hand.

B

In his second issue on appeal, Mr. Ramirez-Navas challenges the district

court’s reliance on the statements contained in the three prior police reports “as the

primary basis for imposing a sentence that was three times longer than the maximum

guideline sentence.” Aplt. Br. at 1.

We construe this argument as a challenge to the procedural reasonableness of

the sentence and, in turn, to the district court’s assessment of the reliability of the

police reports and related evidence that were presented by the government at

sentencing. See United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013)

(“Because unreliable hearsay evidence can result in a sentence based on erroneous

facts, we construe Ruby’s argument as an objection that his sentence was

procedurally unreasonable.”). “We review a party’s procedural reasonableness

challenge for abuse of discretion . . . .” United States v. Lee, 71 F.4th 1217, 1221

(10th Cir. 2023). And, as previously noted, we review for clear error a district

court’s assessment of the reliability of evidence presented at sentencing. Martinez,

824 F.3d at 1261.

Having already concluded the district court did not clearly err in assessing the

reliability of the police reports and related evidence that were submitted by the

government at sentencing, we in turn conclude the district court did not abuse its

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discretion in relying on that evidence as a basis for imposing a sentence above the

advisory guideline range. We therefore reject Mr. Ramirez-Navas’s procedural

reasonableness challenge to his sentence.

C

In his third and final issue on appeal, Mr. Ramirez-Navas challenges the

substantive reasonableness of his sentence, arguing the district court “abused its

discretion by imposing a sentence that was three times—or 200% greater than—the

maximum guideline sentence.” Aplt. Br. at 2.

We review the substantive reasonableness of a sentence “under an

abuse-of-discretion standard, looking at the totality of the circumstances.” United

States v. Hurst, 94 F.4th 993, 1010 (10th Cir. 2024) (internal quotation marks

omitted). Under this standard, “we give substantial deference to the district court and

will only overturn a sentence that is arbitrary, capricious, whimsical, or manifestly

unreasonable.” Id. (internal quotation marks omitted). In other words, “[a] district

court abuses its sentencing discretion only if the sentence exceeded the bounds of

permissible choice.” Id. (internal quotation marks omitted). “This substantial

deference reflects that the sentencing judge is in a superior position to find facts and

judge their import under [18 U.S.C.] § 3553(a) in the individual case.” Id. (internal

quotation marks omitted).

The district court in this case cited a number of factors in support of its

decision to impose a sentence above the advisory guideline range. To begin with, in

discussing Mr. Ramirez-Navas’s history and characteristics, the district court noted

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the recency of Mr. Ramirez-Navas’s three prior convictions. The district court in

turn noted that Mr. Ramirez-Navas returned to the United States “after multiple

violent attacks against others, including two cases that involved stabbing.” R. vol. III

at 37. The district court emphasized that, in its view, “returning to the [United

States] after committing these crimes [wa]s especially serious.” Id. The district

court also took into account “the speed at which the defendant continued to return to

the” United States, including his most recent reentry, which occurred a mere thirteen

days after he was removed. Id.

In addition to considering Mr. Ramirez-Navas’s history and characteristics, the

district court concluded that a sentence within the advisory guideline range would not

“reflect the seriousness of this offense, coming back into the country after multiple

violent convictions,” and likewise would not “promote any respect for the law,

because the defendant continues to return to the country after convictions for

violence.” Id. at 38–39. Further, the district court concluded a sentence within the

advisory guideline range would not “provide just punishment for the offense.” Id. at

39. And, lastly, the district court concluded that an above-guidelines sentence was

necessary both “to afford adequate deterrence to criminal conduct” and “to protect

the public from further crimes” committed by Mr. Ramirez-Navas. Id.

Although Mr. Ramirez-Navas now argues that his prior convictions “were

already accounted for with the guideline’s criminal history component,” the fact of

the matter is that, as the district court essentially concluded, the criminal history

component, which focuses only on the offenses of conviction, failed to take into

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account the serious and violent nature of those prior offenses. Aplt. Br. at 13.

Likewise, the criminal history component failed to account for the recency of the

offenses or the speed at which Mr. Ramirez-Navas returned to the United States after

being removed.

Mr. Ramirez-Navas also argues that the district court’s rationale for imposing

a sentence above the advisory guideline range “was based almost entirely on the

allegedly violent nature of [his] prior convictions.” Id. We disagree. To be sure, the

district court’s analysis of several of the § 3553(a) factors included consideration of

Mr. Ramirez-Navas’s criminal history and the violent nature of those prior offenses.

But, importantly, the specific § 3535(a) factors that were emphasized by the district

court in selecting an above-guideline-range sentence focused on distinct sentencing

goals. These included ensuring the sentence reflected the seriousness of the offense

of conviction, promoting respect for the law, providing just punishment for the

offense, deterring future criminal conduct by Mr. Ramirez-Navas, and protecting the

public from any further crimes committed by him. Notably, Mr. Ramirez-Navas does

not address, let alone refute the district court’s reasoning regarding, any of these

concerns.

In the end, given the district court’s stated reasons for imposing an

above-guidelines sentence, we have little trouble concluding that the sentence

imposed by the district court did not exceed the bounds of permissible choice.

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IV

The judgment of the district court is affirmed.

Entered for the Court

Bobby R. Baldock Circuit Judge