24-293 U.S. v. Ramos
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of February, two thousand twenty-six.
PRESENT: JOHN M. WALKER, JR., BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 24-293
ORTEXIS RAMOS,
Defendant-Appellant. _________________________________________
FOR APPELLEE: Karen L. Peck, Conor M. Reardon, Assistant United States Attorneys, for David X. Sullivan, United States Attorney for the District of Connecticut, New Haven, CT.
FOR DEFENDANT-APPELLANT: Jillian S. Harrington, Law Offices of Jillian S. Harrington, counsel at time of submission, Staten Island, NY; Daniel M. Perez, Law Offices of Daniel M. Perez, on the brief, Newton, NJ.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Williams, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s January 29, 2024 judgment
is VACATED and this matter is REMANDED for imposition of a sentence
consistent with this order.
Defendant-Appellant Ortexis Ramos appeals from a judgment of the United
States District Court for the District of Connecticut (Omar Williams, Judge)
sentencing him principally to 72 months’ (six years’) imprisonment, to be followed
by three years of supervised release. Ramos pled guilty to one count of possession
of a firearm after having previously been convicted of a felony, in violation of
U.S.C. § 922(g)(1) and § 924(a)(8). On appeal, Ramos challenges both the
procedural and substantive reasonableness of his sentence. We assume the
2 parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision.
On September 16, 2022, Ramos, who had a prior felony conviction for
murder using a firearm, was a passenger in a parked vehicle that was approached
by police. When officers attempted to speak to the driver, they found Ramos’s
behavior suspicious and ordered him to exit the vehicle. Ramos fled. After a short
foot chase and brief struggle, Ramos was apprehended; police found a semi-
automatic handgun in his front jacket pocket, loaded with multiple rounds of
ammunition within a large capacity magazine in violation of state law. Ramos did
not use, discharge, threaten to use, or otherwise display the firearm.
In sentencing Ramos, the district court adopted the Probation Office’s
recommended advisory Guidelines range of 30–37 months. That range was based
on a total offense level of 17 (base offense level of 20, reduced by three levels for
his prompt acceptance of responsibility) and a criminal history category of III. The
district court denied the government’s request for a reckless-endangerment
enhancement under U.S.S.G. § 3C1.2, agreeing with Probation that the record did
not support a finding that Ramos created a substantial risk of death or serious
bodily injury when he attempted to flee from law enforcement. At sentencing, the
3 government requested an above-Guidelines sentence of 46 months while the
defense sought a below-Guidelines sentence of 18 months. The district court
sentenced Ramos primarily to 72 months of incarceration.
On appeal, Ramos argues that the district court’s failure to adequately
explain its decision to impose its above-Guidelines sentence and, in particular, the
extent of that upward variance was error. Because the district court’s upward
variance rested largely on a specific factor already encompassed within the
advisory Guidelines calculation adopted by the district court—the fact that Ramos
committed this offense while on probation—and the district court did not explain
why that particular factor nevertheless supported an upward variance, we agree.
I. Procedural Reasonableness 1
We generally review “the procedural reasonableness of a sentence for abuse
of discretion.” United States v. Cooper, 131 F.4th 127, 130 (2d Cir. 2025). 2 A sentence
is procedurally unreasonable if the district court commits “significant procedural
1Although Ramos’s brief focuses primarily on his challenge to the substantive reasonableness of his sentence, he expressly challenges the procedural reasonableness of the sentence as well, and his claim that the district court provided “no reason why” a 72-month sentence was required implicates the procedural adequacy of the court’s explanation under Gall v. United States, 552 U.S. 38, 51 (2007). We thus view this as primarily a procedural challenge.
2In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
4 error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
A major variance from the advisory Guidelines range must be supported by
“a more significant justification than a minor one.” Id. at 50; see also United States
v. Jones, 531 F.3d 163, 171–172 (2d Cir. 2008). District judges “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance” so as to permit “meaningful appellate
review.” Gall, 552 U.S. at 50; see also Peugh v. United States, 569 U.S. 530, 543 (2013)
(“[A] district court varying from the Federal Guidelines should provide an
explanation adequate to the extent of the departure.”) (emphasis added).
Further, and critically in this case, where a sentencing court relies on factors
already incorporated into the Guidelines calculation to impose an upward
variance, it “must articulate specifically the reasons that this particular defendant’s
situation is different from the ordinary situation covered by the Guidelines
calculation.” United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007).
5 Where, as here, the defendant did not object on procedural grounds at
sentencing to a court’s failure to explain its reasoning, we review for plain error.
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24-293 U.S. v. Ramos
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of The United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of February, two thousand twenty-six.
PRESENT: JOHN M. WALKER, JR., BETH ROBINSON, SARAH A. L. MERRIAM, Circuit Judges. _________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 24-293
ORTEXIS RAMOS,
Defendant-Appellant. _________________________________________
FOR APPELLEE: Karen L. Peck, Conor M. Reardon, Assistant United States Attorneys, for David X. Sullivan, United States Attorney for the District of Connecticut, New Haven, CT.
FOR DEFENDANT-APPELLANT: Jillian S. Harrington, Law Offices of Jillian S. Harrington, counsel at time of submission, Staten Island, NY; Daniel M. Perez, Law Offices of Daniel M. Perez, on the brief, Newton, NJ.
Appeal from a judgment of the United States District Court for the District
of Connecticut (Williams, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the district court’s January 29, 2024 judgment
is VACATED and this matter is REMANDED for imposition of a sentence
consistent with this order.
Defendant-Appellant Ortexis Ramos appeals from a judgment of the United
States District Court for the District of Connecticut (Omar Williams, Judge)
sentencing him principally to 72 months’ (six years’) imprisonment, to be followed
by three years of supervised release. Ramos pled guilty to one count of possession
of a firearm after having previously been convicted of a felony, in violation of
U.S.C. § 922(g)(1) and § 924(a)(8). On appeal, Ramos challenges both the
procedural and substantive reasonableness of his sentence. We assume the
2 parties’ familiarity with the underlying facts, procedural history, and arguments
on appeal, to which we refer only as necessary to explain our decision.
On September 16, 2022, Ramos, who had a prior felony conviction for
murder using a firearm, was a passenger in a parked vehicle that was approached
by police. When officers attempted to speak to the driver, they found Ramos’s
behavior suspicious and ordered him to exit the vehicle. Ramos fled. After a short
foot chase and brief struggle, Ramos was apprehended; police found a semi-
automatic handgun in his front jacket pocket, loaded with multiple rounds of
ammunition within a large capacity magazine in violation of state law. Ramos did
not use, discharge, threaten to use, or otherwise display the firearm.
In sentencing Ramos, the district court adopted the Probation Office’s
recommended advisory Guidelines range of 30–37 months. That range was based
on a total offense level of 17 (base offense level of 20, reduced by three levels for
his prompt acceptance of responsibility) and a criminal history category of III. The
district court denied the government’s request for a reckless-endangerment
enhancement under U.S.S.G. § 3C1.2, agreeing with Probation that the record did
not support a finding that Ramos created a substantial risk of death or serious
bodily injury when he attempted to flee from law enforcement. At sentencing, the
3 government requested an above-Guidelines sentence of 46 months while the
defense sought a below-Guidelines sentence of 18 months. The district court
sentenced Ramos primarily to 72 months of incarceration.
On appeal, Ramos argues that the district court’s failure to adequately
explain its decision to impose its above-Guidelines sentence and, in particular, the
extent of that upward variance was error. Because the district court’s upward
variance rested largely on a specific factor already encompassed within the
advisory Guidelines calculation adopted by the district court—the fact that Ramos
committed this offense while on probation—and the district court did not explain
why that particular factor nevertheless supported an upward variance, we agree.
I. Procedural Reasonableness 1
We generally review “the procedural reasonableness of a sentence for abuse
of discretion.” United States v. Cooper, 131 F.4th 127, 130 (2d Cir. 2025). 2 A sentence
is procedurally unreasonable if the district court commits “significant procedural
1Although Ramos’s brief focuses primarily on his challenge to the substantive reasonableness of his sentence, he expressly challenges the procedural reasonableness of the sentence as well, and his claim that the district court provided “no reason why” a 72-month sentence was required implicates the procedural adequacy of the court’s explanation under Gall v. United States, 552 U.S. 38, 51 (2007). We thus view this as primarily a procedural challenge.
2In quotations from caselaw and the parties’ briefing, this summary order omits all internal quotation marks, footnotes, and citations, and accepts all alterations, unless otherwise noted.
4 error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
A major variance from the advisory Guidelines range must be supported by
“a more significant justification than a minor one.” Id. at 50; see also United States
v. Jones, 531 F.3d 163, 171–172 (2d Cir. 2008). District judges “must consider the
extent of the deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance” so as to permit “meaningful appellate
review.” Gall, 552 U.S. at 50; see also Peugh v. United States, 569 U.S. 530, 543 (2013)
(“[A] district court varying from the Federal Guidelines should provide an
explanation adequate to the extent of the departure.”) (emphasis added).
Further, and critically in this case, where a sentencing court relies on factors
already incorporated into the Guidelines calculation to impose an upward
variance, it “must articulate specifically the reasons that this particular defendant’s
situation is different from the ordinary situation covered by the Guidelines
calculation.” United States v. Sindima, 488 F.3d 81, 87 (2d Cir. 2007).
5 Where, as here, the defendant did not object on procedural grounds at
sentencing to a court’s failure to explain its reasoning, we review for plain error.
See United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020).
This case involves a major upward variance. The district court imposed a
sentence of 72 months’ imprisonment—nearly double the top of the advisory
Guidelines range of 37 months and more than 50% higher than the 46-month
sentence sought by the government. In explaining its variance, the district court
relied principally on the following considerations:
Mr. Ramos was on parole for murder (which he committed with a firearm) when he was caught possessing this loaded firearm (with an extended magazine) and fled from (and struggled with) police. His parole does not expire until 2029. The sentence reflects the serious offense within that context, and the need to deter the defendant and others from future crimes, while protecting the public from the defendant (whose flight suggests he knew he was violating the law).
Statement of Reasons (SOR), Dist. Ct. Dkt. 44 at 4. The district court’s oral
explanation of its sentence likewise emphasizes the fact that Ramos committed this
offense (1) while on parole (2) for an offense—murder—that he had committed
with a gun.
But the fact that Ramos committed this offense while on parole was
expressly accounted for in the district court’s Guidelines calculation. Specifically,
6 Probation added one criminal history point pursuant to U.S.S.G. § 4A1.1(e) to
account for the fact that Ramos committed this offense while under a criminal
justice sentence. That adjustment increased Ramos’s criminal history from
Category II to Category III, thereby shifting his advisory Guidelines range from
27–33 to 30–37 months of imprisonment.
With respect to his status as a parolee at the time he unlawfully possessed a
firearm—a factor the district court emphasized in explaining its upward variance,
the district court did not sufficiently “articulate specifically the reasons” why it
believed Ramos’s “situation is different from the ordinary situation” covered by
the Guidelines here. Sindima, 488 F.3d at 87. It emphasized that Ramos committed
this offense while on parole, but it did not acknowledge that this fact was already
baked into the court’s Guidelines calculation and did not explain why this fact
bore greater-than-usual weight in this case. Especially in light of the magnitude
of the court’s upward variance from the advisory Guidelines range in this case, the
omission of further explanation regarding this specific point constitutes
procedural error. See United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en
banc) (a variance from a Guidelines sentence must have a “justification [that] is
sufficiently compelling to support the degree of the variance”).
7 Moreover, that error was plain. That Ramos’s Guidelines calculation
already took into account that he committed this offense while on parole was
reflected in Probation’s Presentence Report, and, given the district court’s
emphasis on this factor, the error affected Ramos’s substantial rights and the
fairness of the proceedings. See United States v. Aldeen, 792 F.3d 247, 253 (2d Cir.
2015), as amended (July 22, 2015) (concluding that the district court committed plain
error in sentencing a defendant for violating supervised release conditions without
adequately explaining its substantially above-Guidelines sentence). On this
record, “we are not persuaded that the district court provided a sufficiently
compelling justification to support the degree of variance.” Id.
II. Substantive Reasonableness
Because we conclude that the district court committed procedural error
requiring vacatur and remand, we need not reach Ramos’s challenge to the
substantive reasonableness of his sentence. See United States v. Juwa, 508 F.3d 694,
699 (2d Cir. 2007).
* * *
Because we conclude that the district court’s sentence relied in part on the
fact that Ramos committed this offense while on parole, and that the district court
8 did not adequately explain why this factor warranted a major variance above the
Guidelines range in light of the fact that the Guidelines calculation accounted for
that factor, we vacate and remand to the district court. If the district court
determines that the same sentence is warranted, it may reimpose that sentence
along with a “sufficiently compelling” statement of reasons addressing this factor.
Sindima, 488 F.3d at 88. If, however, in light of the above discussion it determines
that a different sentence is warranted, it may impose that sentence accompanied
by a statement of the reasons for it.
Accordingly, the sentence imposed by the district court is VACATED and
this matter is REMANDED for proceedings consistent with this order, including
the reimposition of a sentence in open court with the parties present.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court