United States v. Martinez ( 2015 )

13-4769-cr
United States v. Ramirez
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 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, at 40 Foley Square, in the City of New York, on
the 25th day of March, two thousand fifteen.
Present: ROBERT A. KATZMANN,
Chief Judge,
JOHN M. WALKER, JR.,
DENNY CHIN,
Circuit Judges.
________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 13-4769-cr
PABLO ADELSO MARTINEZ, JUAN ANEURY SALCE-MARTINEZ,
Defendants,
SANTIAGO M. RAMIREZ, AKA ALEX RAMIREZ,
Defendant-Appellant.
________________________________________________
For Appellee: Amy Busa and Michael P. Canty, Assistant United States
Attorneys, for Loretta E. Lynch, United States Attorney for the
Eastern District of New York, Brooklyn, NY.
For Defendant-Appellant: Israel Arana, Coral Gables, FL.
Appeal from the United States District Court for the Eastern District of New York
(Seybert, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
and DECREED that the judgment of the district court is hereby AFFIRMED IN PART,
VACATED IN PART, and REMANDED.
Defendant-Appellant Santiago M. Ramirez appeals from a judgment entered on
December 17, 2013, by the United States District Court for the Eastern District of New York
(Seybert, J.), which sentenced him to concurrent terms of 60 months’ imprisonment on one count
of conspiracy to commit food stamp fraud in violation of 18 U.S.C. § 371, 96 months’
imprisonment on one count of conspiracy to commit wire fraud in violation of 18 U.S.C. §§ 1343
& 1349, and 60 months’ imprisonment on one count of making false statements in violation of
18 U.S.C. § 1001(a)(2). On appeal, Ramirez argues, inter alia, that his below-Guidelines
sentence was unreasonable for four reasons: (1) the 14-level enhancement based on the loss
amount should have been determined by a jury rather than the judge; (2) the court improperly
imposed a two-level enhancement for obstruction of justice; (3) the 96-month below-Guidelines
sentence was substantively unreasonable; and (4) the requirement that he register as a sex
offender in light of a 1987 forcible rape conviction was an unreasonable term of supervised
release for this crime. We assume the parties’ familiarity with the underlying facts, procedural
history, and issues on appeal.
A sentence is substantively unreasonable “only in exceptional cases where the trial
court’s decision ‘cannot be located within the range of permissible decisions.’” United States v.
Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting United States v. Rigas, 490 F.3d
208, 238 (2d Cir. 2007)). In other words, substantive unreasonableness occurs only if the
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sentence is “shockingly high, shockingly low, or otherwise unsupportable as a matter of
law.”United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009). A sentence is procedurally
unreasonable if the district court committed a “significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552
U.S. 38, 51 (2007).
Under these standards, we conclude that appellant’s challenges are without merit, except
perhaps in one respect. First, even with the 14-level enhancement based on the loss amount, the
96-month sentence was both below the Guidelines range and below the statutory maximum for
each of the crimes of which Ramirez was convicted. A jury is required to make specific factual
findings only where those findings would compel a sentence greater than the statutory maximum
or increase the mandatory minimum. See Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013)
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); United States v. White, 240 F.3d 127, 135
(2d Cir. 2001) (“Here, the district court did not exceed the maximum for any individual count. It
cannot therefore be said that, as to any individual count, the court’s findings resulted in the
imposition of a greater punishment than was authorized by the jury’s verdict.”). Indeed, where
factual findings do not allow for a sentence greater than the statutory maximum, judicial
factfinding rather than jury factfinding is “required [] under an advisory Guidelines regime.”
United States v. Singletary, 458 F.3d 72, 80 (2d Cir. 2006) (emphasis omitted).
Second, none of the appellant’s arguments that he failed to obstruct justice finds any
support in the record. To the contrary, the jury found that Ramirez knowingly failed to disclose a
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prior conviction for violating the regulations of the food stamp program and knowingly gave
cash in exchange for food stamp credit. Moreover, as the judge concluded “there’s no doubt . . .
that [Ramirez] lied over and over and over and over again.” A. 68.
Third, the below-Guidelines sentence was not substantively unreasonable under the
circumstances. As the trial judge explained at sentencing, the jury found that “[Ramirez] stole
from the very people out there that might need th[e food stamp] program in extremely poor
areas. And what he did after he stole from the government and took money by not affording the
people the appropriate products to purchase, what did he do? He turned around and kept half of
their money . . . . He stole twice. . . . If that isn’t serious, I don’t know what is.” A. 68. As we
have explained on a number of occasions, “[i]n the overwhelming majority of cases, a
Guidelines sentence will fall comfortably within the broad range of sentences that would be
reasonable in the particular circumstances. It is therefore difficult to find that a below-Guidelines
sentence is unreasonable.” United States v. Perez-Frias, 636 F.3d 39, 43 (2d Cir. 2011) (per
curiam) (internal quotation marks and citation omitted). Ramirez’s sentence of 96 months’
imprisonment is more than ten percent less than the low-end of the 108-135 months guideline
range. Based on the reasoning above, we conclude that the sentence is nowhere close to
“shockingly high,
shockingly low, or otherwise unsupportable as a matter of law” such that allowing it to stand
would “damage the administration of justice.” See Rigas, 583 F.3d at 123.
Fourth, while it is established law in this Circuit that “section 3583(d) . . . authorize[s]
the imposition of [sex registration] conditions following a conviction for a non-sex offense,”
such conditions are only permissible where they are “not overly broad or vague.” United States
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v. Dupes, 513 F.3d 338, 344 (2d Cir. 2008). Here, the district court failed to specifically
articulate its reasons for imposing a discretionary sex registration condition and we are therefore
unable to determine whether the registration condition was “overly broad or vague.” As we have
explained in the context of a district court’s application of the discretionary 18 U.S.C. section
3553 factors, “[f]or our own purposes, an adequate explanation is a precondition for meaningful
appellate review.” United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc) (internal
quotation marks omitted).
We therefore REMAND this case to the district court pursuant to the procedures set forth
in United States v. Jacobson, 15 F.3d 19, 21–22 (2d Cir. 1994), for further proceedings. On
remand, the district court should articulate the specific reasons for imposing the sex registration
condition on the record, or alternatively, to state that the sex registration condition is no longer
necessary. We, of course, express no view at this juncture as to whether the imposition of a sex
registration requirement based on a twenty-seven-year-old sexual assault conviction, is
substantively unreasonable or plain error.1 Only once the record is adequately developed on
remand will we be able to make such a determination.
The parties shall restore jurisdiction to this Court by informing the Clerk of Court by
letter once the district court has issued its decision on remand. Following such notification, the
1
In addition, we note that it appears that under New York law the registration
period may have expired by the time of sentencing. See N.Y. Correct. Law § 168-h(1) (“The
duration of registration and verification for a sex offender who has not been designated a sexual
predator, or a sexually violent offender, or a predicate sex offender, and who is classified as a
level one risk, or who has not yet received a risk level classification, shall be annually for a
period of twenty years from the initial date of registration.”). We leave it to the district court to
determine in the first instance whether this statutory provision is applicable in a federal
sentencing and, if so, whether it compels a particular result in this case.
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reinstated appeal will be decided by this panel without further briefing or oral argument unless
otherwise ordered.
We have considered Ramirez’s remaining arguments and find that they lack merit. For
the reasons given, we AFFIRM the judgment of the district court in part, VACATE in part, and
REMAND for further proceedings.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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