United States v. Ramirez ( 1993 )

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.
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.
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.
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.
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
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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.
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.
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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