United States v. Ramiro Ramos ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-11152 MAY 5, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 01-14019-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO RAMOS,
a.k.a. “EL CHAGAN,” etc.,
d.b.a. “R&A HARVESTING,”
Defendant-Appellant.
_______________________________________________________________
________________________
No. 04-12923
________________________
D.C. Docket No. 01-14019-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RAMOS,
a.k.a. NENO, etc.,
d.b.a. R&A HARVESTING, etc.,
Defendant-Appellant.
__________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(May 5, 2005)
Before CARNES, HULL and MARCUS, Circuit Judges.
PER CURIAM:
This is the second time this case has been before this Court. In the first
appeal, this Court vacated two of the four convictions of defendants Ramiro
Ramos and Juan Ramos and vacated their 147-month sentences. On remand, the
district court sentenced both defendants to 60 months’ imprisonment on count 1
and 120 months’ imprisonment on count 4. In this appeal, the defendants
challenge their new sentences. After review, we affirm.
I. BACKGROUND
A. Trial Evidence
The defendants are brothers who used threats to prevent migrant workers
from leaving their employment, housed the migrant workers in abysmal
conditions, kept the migrant workers under surveillance, and kept the migrant
2
workers in debt for the duration of the harvesting season. Further, the defendants
assaulted Jose Martinez, the owner of a transportation service for migrant farm
workers, with the intent of inducing Martinez not to transport migrant farm
workers out of Lake Placid, Florida.
At the defendants’ trial, Martinez and Alejandro Benitez, an employee of
Martinez, testified about the assault. Further, three migrant workers testified as to
their living conditions.
On June 26, 2002, a jury convicted both defendants of: conspiracy to violate
the laws of the United States by keeping migrant workers in involuntary servitude,
in violation of 18 U.S.C. § 371 (count 1); interference with commerce through
extortion by threats or violence, in violation of 18 U.S.C. §§ 1951 and 2 (count 2);
use of a firearm during a crime of violence, in violation of 18 U.S.C. §§ 924 and 2
(count 3); and harboring illegal aliens from January 1, 2000, to June 20, 2001, in
violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2 (count 4).
B. The First Sentencing and Appeal
After the trial, the district court sentenced both defendants to three
concurrent 63-month terms of imprisonment on counts 1, 2, and 4, and to a
consecutive 84-month sentence as to count 3, for a total of 147 months’
imprisonment.
3
In their first appeal, the defendants raised several challenges to their
convictions and sentences. Specifically, the defendants argued that: (1) their
convictions for offenses based on extortion were invalid under Scheidler v.
National Organization for Women, Inc., 537 U.S. 393, 123 S. Ct. 1057 (2003)
because they did not obtain any property during the commission of their offenses;1
(2) the prosecutor engaged in misconduct during its opening statement; and (3)
certain evidence introduced by the government was untimely and inadmissible.
This Court rejected the defendants’ evidentiary and prosecutorial
misconduct arguments. However, we determined that because the defendants had
not obtained any property during the commission of their offenses, an element of
extortion had not been met pursuant to Scheidler. Accordingly, we vacated both
defendants’ convictions and sentences on counts 2 and 3 in full, and also their
convictions and sentences on count 1, to the extent the conspiracy alleged in count
1 relied on extortion. United States v. Ramos, No. 02-16478, at 7 (11th Cir. Sept.
26, 2003).
We noted, however, that the defendants still had valid convictions for: (1)
conspiracy to violate the laws of the United States by keeping migrant workers in
1
In Scheidler, the Supreme Court held that extortion under 18 U.S.C. § 1951 (The Hobbs
Anti-Racketeering Act) requires that a person must actually obtain property from another party. 537
U.S. at 404, 123 S. Ct. at 1065.
4
involuntary servitude (count 1); and (2) harboring illegal aliens (count 4). We
thus remanded for resentencing on these convictions.
C. Resentencing
On remand, the district court ordered revised PSIs for both defendants.
After grouping the offenses, the PSIs determined that the count producing the
highest offense level was count 1, the conspiracy to commit involuntary-servitude
offense. The Guideline for that offense is U.S.S.G. § 2H4.1(a)(1), which sets the
base offense level at 22.2
In addition, § 2H4.1(b)(4)(B) increases that base offense level if “any other
felony offense” was committed during the involuntary-servitude offense and the
offense level for that other felony offense is greater. Specifically, § 2H4.1(b)(4)
provides:
(4) If any other felony offense was committed during the commission of,
or in connection with, the peonage or involuntary servitude offense,
increase to the greater of:
(A) 2 plus the offense level as determined above, or
(B) 2 plus the offense level from the offense guideline
applicable to that other offense, but in no event greater
than level 43.
2
The applicable Guideline for conspiracy, § 2X1.1, refers to the substantive offense. In this
case, the substantive offense is involuntary servitude, in violation of 18 U.S.C. § 1584. The
Guideline for a § 1584 offense is § 2H4.1(a)(1). All citations are to the 2002 version of the
Guidelines.
5
U.S.S.G. §§ 2H4.1(b)(4)(A)-(B) (emphasis added). In addition to their
involuntary-servitude offense, the defendants were convicted of another felony:
harboring illegal aliens in violation of 8 U.S.C. § 1324. The PSI indicated that the
offense level for this other felony – harboring illegal aliens – was higher and thus
controlled the offense level for the involuntary-servitude offense.
While U.S.S.G. § 2L1.1 sets the base offense level at 12 for harboring
illegal aliens, the PSI recommended a nine-level enhancement under §
2L1.1(b)(2)(C) because the defendants’ harboring-illegal-aliens offense involved
more than 100 aliens; a four-level enhancement under § 2L1.1(b)(4)(B) because
the defendants brandished a firearm during the May 27, 2000 assault on Martinez;
and a six-level enhancement under § 2L1.1(b)(6)(3) because Martinez sustained
permanent bodily injury. Accordingly, the PSI recommended: (1) an offense level
of 31 for the harboring-illegal-aliens offense (12+9+4+6); and (2) an offense level
of 33 for the involuntary-servitude offense (two plus the offense level of 31 from
the harboring-illegal-aliens offense). See U.S.S.G. § 2H4.1(b)(4)(B).
The PSI also recommended a two-level enhancement for Ramiro Ramos for
obstruction of justice. Thus, Ramiro Ramos’s total offense level was 35 and Juan
Ramos’s total offense level was 33. Both defendants had a criminal history
category of I.
6
At resentencing, the district court adopted the Guidelines calculations in the
PSI. Further, the district court accepted the government’s argument that the trial
evidence showed that both defendants were leaders of the organization and
deserved leadership role enhancements. The four-level leadership-role
enhancement resulted in a total offense level of 39 for Ramiro Ramos and 37 for
Juan Ramos. Thus, Ramiro Ramos’s Guidelines range was 262-327 months’
imprisonment, and Juan Ramos’s Guidelines range was 210-262 months’
imprisonment.
Ultimately, the district court sentenced both defendants to only 60 months’
imprisonment on the involuntary-servitude offense and 120 months’ imprisonment
on count 4 to run consecutively, for a total of 180 months’ imprisonment. The
sentences were based on the statutory maximums for each offense.3
The defendants timely appealed.
II. DISCUSSION
A. Application of § 2H4.1(b)(4)(B)
The defendants’ principal argument is that the district court incorrectly
applied §§ 2H4.1(b)(4)(B) and 2L1.1 in sentencing them. The defendants do not
3
The statutory maximum for the involuntary-servitude offense is 60 months’ imprisonment.
18 U.S.C. § 371. The statutory maximum for the harboring-illegal-aliens offense is 120 months’
imprisonment. 8 U.S.C. § 1324(a)(2).
7
challenge that the trial evidence showed that they assaulted and threatened
Martinez on May 27, 2000 with firearms. Instead, the defendants primarily argue
that the assault on Martinez, including the use of firearms, was not connected to
their harboring-illegal-aliens offense and should not be used to enhance their
sentences. They also argue that the district court erred in determining that the
injury Martinez sustained during the assault was “permanent” for purposes of §
2L1.1(b)(6)(3), and that the defendants harbored more than 100 illegal aliens.4
During the sentencing hearing, the district court found that the trial evidence
showed that the assault was part of the defendants’ offenses. Further, the district
court determined that the trial evidence showed that the defendants harbored more
than 100 illegal aliens and that Martinez’s injury was permanent. We recount
some of the trial evidence.
As to the May 27, 2000 assault, the trial evidence indicated that the
defendants approached vans owned by Martinez and threatened to kill Marcos
Orozco, a van driver. The defendants also threatened Alejandro Benitez, another
van driver. Further, the defendants repeatedly hit Martinez with a gun, kicked him
4
The defendants made these same objections at sentencing. During the sentencing hearing,
the district court overruled the defendants’ objections. This Court reviews the district court’s
application of the Guidelines de novo and its factual findings for clear error. United States v. Grant,
397 F.3d 1330, 1332 (11th Cir. 2005).
8
until he lost consciousness, and accused him of “taking away” their “people.”
Moreover, the defendants vandalized the vans that Martinez used to transport
migrant workers, and Ramiro Ramos threatened to kill Martinez.
The offenses that gave rise to the charges in counts 1 and 4 occurred from
January 2000 to June 2001. The May 27, 2000 altercation with Martinez occurred
during that time and the trial evidence showed that it was committed in order to
induce Martinez to stop transporting migrant workers outside of their area because
they felt Martinez’s business threatened their efforts to harbor illegal aliens. We
thus conclude that the district court did not clearly err in finding that the assault on
Martinez was connected to defendants’ harboring-illegal-aliens offense.
The district court also did not clearly err in finding that the defendants
harbored substantially more than 100 aliens. The trial testimony of the Social
Security Administration and Border Patrol agents was sufficient to support that
fact-finding. Specifically, at trial, an agent with the Social Security
Administration testified that based on the I-9 forms submitted by the defendants
for the period from January 1, 2000 through June 30, 2001, only sixteen of their
approximately 680 workers had valid social security numbers. Further, an agent
from the United States Border Patrol testified that the I-9 forms submitted by the
defendants reflected that only ten of the workers had valid alien registration
9
numbers, an eight-digit number assigned to individuals lawfully admitted to the
United States for permanent residence.
Finally, at trial, Martinez also testified that as a result of the injuries
received during the altercation, he sustained a scar from his hairline to the bridge
of his nose and a permanent scar on his lip. The permanency of Martinez’s scar is
sufficient to classify his injury as a permanent or life-threatening bodily injury.5
See United States v. Torrealba, 339 F.3d 1238, 1246 (11th Cir. 2003), cert. denied,
540 U.S. 1207, 124 S. Ct. 1481 (2004) (“[T]he plain language of application note
1[(g)] encompasses injuries that may not be terribly severe but are permanent,
hence the disjunctive: ‘permanent or life-threatening injuries.’” (internal quotation
marks and citation omitted)).
Accordingly, the district court did not err in calculating the defendants’
sentences under §§ 2H4.1(b)(4)(B) and 2L1.1.6
5
The Guidelines define permanent or life-threatening bodily injury as an “injury involving
a substantial risk of death; loss or substantial impairment of the function of a bodily member, organ,
or mental faculty that is likely to be permanent; or an obvious disfigurement that is likely to be
permanent.” U.S.S.G. § 1B1.1 cmt. n.1(g).
6
The entire briefing on appeal as to Juan Ramos was completed on November 1, 2004. On
March 11, 2005, Juan Ramos filed a motion for leave to file a supplemental brief to raise
constitutional issues about his sentencing enhancements pursuant to United States v. Booker, 543
U.S. __, 125 S. Ct. 738 (2005). While Juan Ramos’s initial brief on appeal challenged the
sufficiency of the evidence as to his enhancements and whether § 2H4.1(b)(4)(B) was an applicable
guideline, it did not raise any constitutional issues about those enhancements or the Guidelines even
though Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004) was decided on June 24, 2004,
well prior to the filing of Juan Ramos’s brief. Because Juan Ramos did not raise any constitutional
10
B. Vindictive Sentencing
Relying on North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072 (1969),
the defendants contend that the district court’s decision to impose a harsher
sentence than it did originally gives rise to a presumption that the court acted
vindictively, and that the district court failed to articulate reasons for imposing the
longer sentence that are sufficient to rebut that presumption, thus establishing a
violation of their due process rights.7 We disagree.
issues in his initial brief, we deem those issues abandoned. See United States v. Dockery, 401 F.3d
1261, 1262 (11th Cir. 2005) (declining to consider Booker issue when defendant failed to timely
raise it in his initial brief); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000) (“Defendant
abandoned the [Apprendi] indictment issue by not raising the issue in his initial brief.”); see also
United States v. Levy, 379 F.3d 1241, 1242 (11th Cir. 2004), petition for cert. filed, March 1, 2005
(No. 04-8942) (declining to consider Blakely issue raised for the first time in petition for rehearing).
Accordingly, we deny Juan Ramos’s March 11, 2005 motion for leave to file a supplemental brief
to raise new issues.
We also point out that the defendants did not raise any constitutional issues under the Sixth
Amendment in the district court and thus at most we would review the defendants’ Booker issues
for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), petition for cert.
filed, February 23, 2005 (73 U.S.L.W. 3531). Even if the defendants could show error that was
plain, they would be unable to satisfy the third prong of plain-error review. As discussed above, the
district court’s fact-findings were not clearly erroneous and supported the defendants’ enhancements.
The Booker error is not the use of extra-verdict enhancements, but “the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge. . . .” Id. at 1301.
Nothing in the record indicates that the defendants’ sentences would have been different under an
advisory Guidelines scheme. In fact, the 60- and 120-month sentences were the result of the
statutory maximums for their offenses, and those maximums were below even the low end of the
applicable Guidelines ranges, which were 262-327 months’ imprisonment for Ramiro Ramos and
210-262 months’ imprisonment for Juan Ramos.
7
In Pearce, the Supreme Court held that if a more severe sentence is imposed following
appeal, the reasons for the harsher sentence must appear on the record and must be “based upon
objective information concerning identifiable conduct on the part of the defendant occurring after
the time of the original sentencing proceeding.” 395 U.S. at 726, 89 S. Ct. at 2081. In Alabama v.
Smith, 490 U.S. 794, 109 S. Ct. 2201 (1989), the Supreme Court clarified the Pearce doctrine by
11
First, as determined above, at resentencing the district court properly
determined the defendants’ Guidelines calculations. In the original sentencing,
when the probation office applied § 2H4.1, the Guideline for involuntary
servitude, it incorrectly cross-referenced the Guideline applicable to extortion
instead of the higher Guideline in § 2L1.1 for harboring illegal aliens. Although
we are not excusing the incorrect calculations that were used at the first
sentencing, we do not attribute the correct application of § 2H4.1 at resentencing
to vindictiveness. See United States v. Edwards, 225 F.3d 991, 993 (8th Cir.
2000) (“[T]here is no indication of vindictiveness in resentencing a defendant to
exactly the sentence that the defendant would have received but for the erroneous
application of [the Guidelines].”); United States v. Duso, 42 F.3d 365, 369 (6th
Cir. 1994) (“If the district judge errs in favor of the defendant, however, the
defendant bears the risk that the error may be corrected against the defendant’s
favor [on resentencing].”).8
explaining that the presumption of vindictiveness applies only where there is a “reasonable
likelihood” that the increase in the sentence is the product of actual vindictiveness, and if the
presumption does not apply, the defendant must prove actual vindictiveness. Smith 490 U.S. at 799,
109 S. Ct. 2204-05.
8
At resentencing, the district court also correctly applied the obstruction-of-justice and
leadership-role enhancements. The obstruction-of-justice and leadership-role enhancements were
the result of the government’s timely objections to the PSI upon resentencing. The government
attempted to make those same objections at the original sentencing; however, they were untimely.
The district court was permitted to consider the objections on remand because they were timely and
12
Further, the transcript of the resentencing hearing reflects that the district
court carefully considered each of the parties’ objections, detailed the basis for its
calculations, and explained the reasons the new sentences were longer than the
original sentences. See United States v. Cox, 299 F.3d 143, 149-50 (2d Cir. 2002)
(finding no vindictiveness and stating “the district court throughout these
proceedings carefully notified the parties of its concerns, considered their
arguments and submissions, and deliberately laid out its rationale”).
C. Entitlement to Lesser Sentences
The defendants also argue that they were entitled to a lesser sentence on
remand because two of their convictions were vacated. We disagree. It is well-
settled that a defendant is not entitled to a shorter sentence just because one or
more counts of conviction are dismissed on appeal and he is resentenced on the
remaining counts. See United States v. Warda, 285 F.3d 573, 580-81 (7th Cir.
2002); see also United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
III. CONCLUSION
because the sentencing process had started anew. See United States v. Stinson, 97 F.3d 466, 469
(11th Cir. 1996) (“[W]hen a criminal sentence is vacated, it becomes void in its entirety; the sentence
– including any enhancements – has been wholly nullified and the slate wiped clean.” (internal
quotation marks and citation omitted)). Further, there is no evidence in the record that these
enhancements were the result of vindictiveness. In any event, as explained in footnote 6, the
defendants received lower sentences than the Guidelines range for their offenses due to the
applicable statutory maximums.
13
For the above reasons, we affirm the defendants’ sentences.
AFFIRMED.
14