United States v. Ramirez ( 1993 )


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  • USCA1 Opinion









    December 16, 1993 UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT


    ____________________



    No. 93-1403


    UNITED STATES,

    Appellee,

    v.

    EDIBERTO RAMIREZ,

    Defendant, Appellant.


    __________________


    ERRATA SHEET

    The opinion of this court issued on December 9, 1993 is
    amended as follows:

    Page 5, line 7: Change "Ramirez'" to "Ramirez's".

    Page 5, line 24: Change first "was" to "is".





































    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT

    ____________________


    No. 93-1403

    UNITED STATES,

    Appellee,

    v.

    EDIBERTO RAMIREZ,

    Defendant, Appellant.


    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF RHODE ISLAND


    [Hon. Francis J. Boyle, Senior U.S. District Judge]
    __________________________

    ____________________

    Before

    Breyer, Chief Judge,
    ___________
    Selya and Cyr, Circuit Judges.
    ______________

    ____________________

    Francis R. Williams on brief for appellant.
    ___________________
    Edwin J. Gale, United States Attorney, Margaret E. Curran and
    ______________ ___________________
    Lawrence D. Gaynor, Assistant United States Attorneys, on brief for
    ___________________
    appellee.


    ____________________

    December 9, 1993
    ____________________






















    Per Curiam. Defendant-appellant Ediberto Ramirez
    __________

    pleaded guilty to a two-count indictment which charged him,

    after having been convicted of a felony, with possession of a

    firearm and of ammunition, respectively, in violation of 18

    U.S.C. 922(g). The presentence investigation report (PSI

    Report) stated that Ramirez was observed firing the weapon in

    a public place. Imposing sentence under the federal

    sentencing guidelines and departing upward from the

    applicable guideline sentencing range, the district court

    sentenced appellant to a 37-month prison term and a 3-year

    supervised release term. The court further ordered that

    appellant be remanded to the custody of immigration

    authorities for deportation proceedings upon his release.

    Ramirez appeals from his sentence. We affirm.

    A.
    A.
    _

    The PSI Report recommended that Ramirez be assigned

    eleven criminal history points based on his prior criminal

    convictions and on the fact that the instant offense occurred

    while he was under a sentence of probation for a previous

    offense. It then listed the following prior criminal conduct

    as an adult: three charges of assault with a dangerous weapon

    (once a broom handle, once a BB gun, and once a handgun), the

    last of which is still pending; and one charge of driving to

    endanger, death resulting (associated with a charge of

    possessing a stolen motor vehicle), which is still pending.



















    Finally, the PSI Report listed two "factors that may warrant

    departure": (1) that several of appellant's prior

    convictions were consolidated for sentencing, and as a result

    were "undercounted" in the calculation of his criminal

    history score, and (2) that the offense of conviction was

    committed while Ramirez was free on bail.

    In announcing its decision to depart upward, the

    district court stated:

    I have reviewed the pre-sentence report
    and considered the objections of the
    defendant to an upward departure. It
    seems to me that this is a case in which
    upward departure is not only justified,
    it's required. We have a defendant who
    is 19 years or so old, who has never had
    a job so far as I can see, whose sole
    occupation is taking other people's
    property and who is escalating this
    conduct from assaulting somebody with a
    broomstick to firing a firearm in the
    air, the carrying of a firearm. It seems
    to me the charge itself that he's here on
    doesn't really indicate the seriousness
    of the conduct that's involved here and
    it seems to me that the computation
    significantly under-represents the
    seriousness of the past criminal conduct
    and the likelihood of the commission of
    further crime in the circumstance. Here
    the record pretty fairly shows that the
    defendant is content to accomplish
    nothing but violations of the law.
    Although he does indicate that he is
    sorry this happened, takes responsibility
    for it, it's pretty clear to me that this
    record doesn't justify, or this record
    results in under-representation. I'm
    going to depart
    ---

    . . .



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    You're 20 years old and you've never had
    a job and you tell me that you don't know
    anything about earning respect because
    you haven't been respected. Your mother
    has to work very hard to support you.
    It's about time you took some of the
    responsibility for what you do. It's not
    the alcohol that drives these cars away,
    get into accidents in which people get
    killed. Not the alcohol that does that.
    It's not the alcohol that steals the
    cars. You're apparently not so drunk
    that you can't steal a car and drive it.
    It's you driving the car, not the
    alcohol. It's you stealing and then
    escalating the cars one after another.
    It's you assaulting somebody with a
    broomstick and then a BB gun and then
    finally running around with a loaded
    pistol firing it in the air. It's not
    the alcohol that's firing that gun. It's
    not the alcohol that possesses that gun.
    It's you. How many other people's lives
    are in jeopardy because you don't take
    responsibility for what you're doing,
    until push comes to shove, until you're
    here and you know you're really facing
    some time, you know you're really going
    to jail for the first time. I think you
    need some time to think about what the
    future of your life is going to be,
    really, really think about it.

    The district court, by its reference to the PSI

    Report in the context of elaborating the reasons for an

    upward departure, appears to have based its decision to

    depart, at least in part, on the two possible grounds for

    departure suggested by the probation department. On appeal,

    Ramirez raises no objection to either of those two grounds.

    Rather, his sole challenge on appeal is to what he

    characterizes as the district court's decision to depart

    upward on the basis of his prior arrest record.


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    His challenge has two prongs. First, he argues

    that an upward departure on the basis of a prior arrest

    record is forbidden by U.S.S.G. 4A1.3, which states that "a

    prior arrest record itself shall not be considered under

    4A1.3." Second, he argues that the district court "had not

    adequately explained the factual basis for its use of those

    arrests as a ground for departure."

    B.
    B.
    _

    We disagree with Ramirez's characterization of

    the district court's departure as impermissibly based on his

    prior arrest record itself. U.S.S.G. 4A1.3 states: "If

    reliable information indicates that the criminal history

    category does not adequately reflect the seriousness of the

    defendant's past criminal conduct or the likelihood that the

    defendant will commit other crimes, the court may consider

    imposing a sentence departing from the otherwise applicable

    guideline range. Such information may include, but is not

    limited to, information concerning: . . . (e) prior similar

    adult criminal conduct not resulting in a criminal

    conviction." To be sure, the guideline goes on to state that

    "a prior arrest record itself shall not be considered" for

    this purpose. But, so long as that limitation is observed,

    prior similar adult criminal conduct is a basis on which the

    Sentencing Commission has "encouraged" upward departures.

    United States v. Rivera, 994 F.2d 942, 948 (1st Cir. 1993).
    _____________ ______



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    We conclude that the district court's upward departure is

    permissible if it was made on the basis of reliable evidence

    of prior similar adult criminal conduct, even though the

    conduct did not result, or had not yet resulted, in

    convictions.

    C.
    C.
    _

    We turn next to whether the particular

    circumstances cited by the district court "are of a kind or

    degree that they may appropriately be relied upon to justify

    departure." Id. at 950. In this instance, that question
    __

    boils down to whether the prior conduct is "similar" to the

    offense of conviction, as required by U.S.S.G. 4A1.3(e).

    The offense of conviction, again, is possession of

    a firearm, under circumstances in which Ramirez, in a public

    place, discharged the firearm in the air. The similarity

    between this offense and appellant's prior alleged conduct

    involving assault with a broom handle, a BB gun, and a

    handgun, -- possession and/or threatened use of a dangerous

    weapon -- is clear. See United States v. Tabares, 951 F.2d
    ___ _____________ _______

    405, 411 (1st Cir. 1991) (assuming that prior conduct

    involving possession of a dangerous weapon and assault with a

    deadly weapon was similar to possession of a firearm); United
    ______

    States v. Cota-Guerrero, 907 F.2d 87, 89 (9th Cir. 1990)
    ______ _____________

    ("Inasmuch as they show a propensity toward violence and a

    willingness to use force, these crimes [assault with a deadly



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    weapon and assault and battery] may be viewed as similar to

    possession of a firearm by a felon").

    The similarity between the instant firearm offense

    and the prior conduct of driving to endanger, death

    resulting, is less obvious. Nevertheless, we find -- with

    appropriate respect for the district court's superior "feel"

    for the particular circumstances of the case, Rivera, 994
    ______

    F.2d at 951-52 -- that, at least under the circumstances

    present here, the offenses are sufficiently "similar" to form

    part of the justification for an upward departure under

    U.S.S.G. 4A1.3.

    The district court stated clearly that its

    paramount concern was appellant's record of "escalating"

    recidivism -- a pattern of conduct suggesting to the court

    that Ramirez did not care "[h]ow many other people's lives

    are in jeopardy" because Ramirez did not take responsibility

    for his own acts. Appellant's prior alleged conduct of

    driving to endanger, death resulting, like the instant

    firearms offense, displays a reckless indifference toward

    human life. The two crimes can, therefore, reasonably be

    viewed, at least under present circumstances, as "similar"

    offenses. Cf. United States v. Moore, 931 F.2d 3, 4 (1st
    __ _____________ _____

    Cir. 1991) (treating as "similar" offenses that "reveal . . .

    the same sort of dishonesty and misappropriation of other

    people's property").



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    D.
    D.
    _

    The remaining question -- since appellant has not

    challenged the "degree" of departure, see Rivera, 994 F.2d at
    ___ ______

    950 -- is whether "the evidence . . . supports the departure-

    related findings of fact." Id. In other words, did the
    __

    district court base its ruling on "reliable information" of

    "prior similar adult criminal conduct not resulting in a

    criminal conviction" that indicates "that the criminal

    history category does not adequately reflect the seriousness

    of the defendant's past criminal conduct or the likelihood

    that the defendant will commit other crimes"? U.S.S.G.

    4A1.3. We think this query merits an affirmative answer.



    In Tabares, 951 F.2d 405, we upheld a district
    _______

    court's upward departure on the basis of three prior criminal

    charges (possession of a dangerous weapon and two assaults

    with a deadly weapon) that had not resulted in convictions.

    All three prior charges had been dismissed for reasons

    unrelated to the merits. We determined that the PSI Report's

    account of these prior instances constituted "reliable

    information" to support an upward departure. Id. at 411. In
    ___

    the process, we noted specifically defendant's "failure to

    contest the facts and the absence of any acquittal,"

    circumstances that left little "doubt that these acts

    occurred." Id.; see also United States v. Torres, 977 F.2d
    __ ___ ____ _____________ ______



    -8-















    321, 330 (7th Cir. 1992) (observing that, "[w]hen a defendant

    has an opportunity to and fails to object to the facts,

    information, and records used to support a departure [on the

    basis of prior similar adult criminal conduct], there is

    little reason to question a district court's decision");

    United States v. Gaddy, 909 F.2d 196, 201 (7th Cir. 1990)
    _____________ _____

    (similar).

    These authorities get the grease from the goose.

    In this case, the PSI Report contains descriptions, taken

    from the original case files, of the conduct that led to each

    of the prior charges. In this case, as in Tabares, appellant
    _______

    received a full opportunity to object to these descriptions,

    and he raised no objections. The district court plainly

    relied on these descriptive accounts of appellant's prior

    conduct, not on the mere fact of prior arrests. And, there

    can be no question of the seriousness of the conduct alleged

    in these charges. Under the same reasoning we applied in

    Tabares, therefore, we find that the evidence of record
    _______

    adequately supports an upward departure on the basis of prior

    similar adult criminal conduct.

    E.
    E.
    _

    Turning to appellant's final argument -- that the

    district court did not adequately explain the factual basis

    for its use of the prior charges as a ground for departure --

    we acknowledge that the court's discussion of its reasons for



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    departure might, in one respect, fall slightly short of the

    requirements set forth in Rivera, 994 F.2d 942. The district
    ______

    court's remarks leave some ambiguity about whether the court

    relied, at least in part, on the two grounds for upward

    departure recited in the PSI Report. In other words, the

    district court did not expressly explain its reasoning with

    regard to those two grounds. Appellant, however, has not

    challenged the district court's use of these grounds, so any

    error is necessarily harmless.

    As to the remaining ground for departure, based on

    appellant's prior alleged criminal conduct, the district

    court did set forth its reasoning in adequate detail. The

    court explained its concern that the guideline sentence

    understated the potential for "escalating" recidivism

    suggested by appellant's prior conduct. No more was

    exigible.1

    F.
    F.
    _

    We need go no further. On this record, appellant's

    sentence was lawfully constructed and imposed.


    ____________________

    1. Even if we assume, arguendo, that the district court did
    ________
    not adequately explain its analysis under the Rivera
    ______
    standard, we are mindful that appellant was sentenced before
    this court decided Rivera. We have recognized that Rivera
    ______ ______
    looked to the future: "In future cases we would expect, in
    line with our general discussion in Rivera, a very deliberate
    ______
    discussion of the factors making the case unusual. But we
    see no purpose served in this case, decided below without the
    benefit of our recent guidance, in remanding to make explicit
    what was implicit." United States v. Sclamo, 997 F.2d 970,
    _____________ ______
    974 (1st Cir. 1993). So it is here.

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    Affirmed.
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