United States v. Ramos ( 2003 )


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  •                                                                                                                            Opinions of the United
    2003 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    1-2-2003
    USA v. Ramos
    Precedential or Non-Precedential: Non-Precedential
    Docket 02-1792
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    Recommended Citation
    "USA v. Ramos" (2003). 2003 Decisions. Paper 899.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2003/899
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 02-1792
    ___________
    UNITED STATES OF AMERICA
    v.
    JOSE MIGUEL RAMOS
    Appellant.
    ___________
    On Appeal from the United States District Court
    for the District of New Jersey
    (Crim. No. 01-cr-00599)
    District Judge: The Honorable John C. Lifland
    ___________
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    December 12, 2002
    Before: FUENTES and STAPLETON, Circuit Judges and O’KELLEY*, District Judge
    (Opinion Filed: January 2, 2003)
    ________________________
    * The Honorable William C. O’Kelley, United States District Judge for the Northern
    District of Georgia, sitting by designation.
    ________________________
    OPINION OF THE COURT
    ________________________
    FUENTES, Circuit Judge:
    On September 21, 2001, Ramos pled guilty to a one-count information charging him
    with violating 
    21 U.S.C. § 952
    (a) by importing over 100 grams of heroin from Colombia into
    the United States. His appeal is limited to the sentence imposed on him by the District Court.
    He argues that the District Court erred in declining to exercise its discretion to grant him a
    downward departure under U.S.G.G. § 4A1.3. We will dismiss the appeal for lack of
    jurisdiction.
    I.
    On April 25, 2001, Appellant Jose Ramos arrived at Newark International Airport on
    a flight from Bogota, Colombia. At a routine customs examination, Ramos appeared
    nervous and was, therefore, asked to consent to an x-ray. The consensual x-ray exam
    revealed that foreign objects were in his digestive tract. Ramos was transported to a medical
    facility for observation where he passed 43 pellets of a substance which tested positive for
    heroin. A Drug Enforcement Agency lab report indicated that the total net weight of the
    heroin recovered from Ram os’ body was 947.3 grams with a 93 % purity. Thereafter Ramos
    pled guilty to a one-count information charging him with importing drugs.
    In the Pre-sentence Investigation Report, the Probation Office assigned Ramos a total
    -2-
    offense level of 27 and a criminal history category of V based upon a total of 10 criminal
    history points, which placed him in a sentencing range of 120-150 months. At sentencing
    on March 7, 2002, the Court found that a two-level downward adjustment was warranted due
    to Ram os’ minor role in the drug importation offense with which he had been charged. With
    an adjusted total offense level of 25 and a criminal history of V, the applicable guideline
    range was 100 to 125 months.
    Ramos moved for a downward departure pursuant to U.S.S.G. § 4A1.3 1 on the basis
    that his criminal history score over-represented (1) the seriousness of his criminal past, which
    consisted of predominantly drug-possession convictions stemming from his drug addiction,
    and (2) the likelihood that he would commit other crimes. Ramos requested imposition of
    a 60 month sentence so that he would be eligible for participation in a boot camp program.
    The Government opposed Ramos’ request for a downward departure, asserting that his
    continued non-compliance with the law and the terms and conditions of probation showed
    that Ramos had a serious criminal history and would likely commit future crimes. After
    hearing arguments, the District Court declined to depart downward. The Court sentenced
    1
    Section 4A1.3 provides:
    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.
    U.S.S.G. § 4A1.3
    -3-
    Ramos to imprisonment for a term of 100 months, the lowest term under the applicable
    guidelines range, and supervised release for four years. Ramos filed a timely Notice of
    Appeal.
    The District Court exercised jurisdiction over this case pursuant to 
    18 U.S.C. § 3231
    .
    We have appellate jurisdiction pursuant to 
    28 U.S.C. § 1291
    . We review a district court’s
    decisions concerning departures from the Sentencing Guidelines for an abuse of discretion.
    See, e.g., United States v. Abuhouran, 
    161 F.3d 206
    , 209 (3d Cir. 1998) (citing United States
    v. Sally, 
    116 F.3d 76
    , 78 (3d Cir. 1997)). However, “[w]e lack jurisdiction to review a
    refusal to depart downward when the district court, knowing it may do so, nonetheless
    determines that departure is not warranted.” United States v. McQuilkin, 
    97 F.3d 723
    , 729
    (3d Cir. 1989) (citing United States v. Denardi, 
    892 F.2d 269
    , 272 (3d Cir. 1989)).
    II.
    Ramos requested a downward departure on the basis that a criminal history category
    of V over-represented the seriousness of his prior conduct and his risk of recidivism because
    all but one of his convictions were for possession of narcotics due to his addiction and the
    single non-drug related conviction was for criminal trespass, for which he served one day.
    Ramos pointed out that he had served a combined total time of less than eight and a half
    months for committing minor offenses but was being placed in the same criminal history
    category as hard-core criminals who have committed several violent offenses, such as armed
    robbery or aggravated assault, and who would have served a substantially longer time in
    -4-
    prison for those offenses.
    Ramos asserts that the District Court erroneously disregarded evidence of
    accomplishments suggesting that his risk of recidivism has been lowered, such as his
    achievement of sobriety, completion of his GED, and enrollment in job skills courses.
    Ramos also asserts on appeal that the District Court did not consider a wide range of factors
    in assessing whether his criminal history score overstated the seriousness of his past conduct.
    Our review of the record indicates that the District Court recognized its discretion to
    depart downward. The Court explained:
    Departures under 4A 1.3 such as those that are requested here
    are justified in certain cases. Those cases include, or those cases
    are defined by the fact that there has been a significant over
    representation of the seriousness of his past conduct and future
    threat to society. I am quoting from the United States versus
    Beckham decision of 
    968 F.2d 47
    . Page 55.2
    App. at 26.
    The record also shows that the District Court considered multiple factors in assessing
    whether Ramos’ criminal history overstated his past criminal conduct and the risk of
    recidivism. After defense counsel presented Ramos’ arguments in support of a downward
    departure, the Court clarified its understanding of Ramos’ position by asking:
    The argument, as I understand it, is that Mr. Ramos was a heroin
    addict for many years, that he – that part of his criminal history
    and four out of the ten [criminal history] points [were] related to
    selling drugs in order to earn money so that he could support his
    2
    United States v. Beckham, 
    968 F.2d 47
    , 55 (D.C. Cir. 1992).
    -5-
    habit.
    [A] lesser number of points in the criminal history are
    attributable to possession for personal use. Am I accurately
    summarizing your position . . . ?
    App. at 25-26. Defense counsel responded: “Yes, your Honor.” App. at 26. The District
    Court then explained why it decided to deny the requested downward departure:
    It appears to me that the history of these offenses which
    constitute Mr. Ramos’ criminal history extend over a substantial
    period of time, a fairly steady recidivism starting at age 29, and
    continuing through age about 32, and the history and then
    including this offense, where I believe he was about 33 at the
    time of his arrest. So insofar as Mr. Ramos’ future threat to
    society, I, and as reflected in his criminal history, it does appear
    to me that there will be a continuing threat, based upon that
    history.
    Mr. Ramos was not an immature individual at the time. I
    indicated his age already, which certainly is an age of maturity.
    As I have indicated, there has been a steady progression of
    offenses throughout the period of time about four years in M r.
    Ram os’ history. All of that history is relatively recent.
    So for those reasons I must conclude that criminal history of ten
    does not significantly over represent the actual criminal history
    of Mr. Ramos. So I must deny that motion for a downward
    departure.
    App. at 26-27. Notwithstanding Ramos’ arguments to the contrary, the Court expressly
    acknowledged its awareness of the addiction which motivated Ramos’ criminal conduct and
    the efforts Ramos had undertaken to recover from his addiction. This is reflected in part by
    the Court’s response to Ramos’ request for a sentence at the bottom of the guidelines range:
    -6-
    Well, Mr. Ramos has demonstrated a need for help with his
    substance abuse problem and [defense counsel] has told me that
    in the past he has successfully received such help.
    I will certainly recommend to the Bureau of Prisons that efforts
    continue in that respect.
    My sentence will be at the bottom of the guideline range that I
    have established. The reasons I am sentencing, I am going to
    sentence at the bottom of that guideline range are that both in
    the presentence report and in his remarks here today Mr. Ramos
    has demonstrated genuine remorse, and I do take account of the
    fact that his addiction did play a part in his criminal conduct.
    App. at 29. Moreover, the Court’s appreciation of the role that Ramos’ addiction played in
    his life is reflected by the steps it took to ensure that Ramos would remain drug free, such
    as placing Ramos on supervised release for a term of four years following the end of his
    sentence, during the course of which Ramos would be required to submit to drug testing.
    It is clear from the record that the District Court thoroughly considered the arguments
    advanced by Ramos in support of his motion for downward departure and acted well within
    its discretion in denying the relief sought. As such, the District Court’s decision is not
    reviewable by this Court.       This appeal is therefore dismissed for lack of appellate
    jurisdiction.
    _____________________________
    TO THE CLERK OF THE COURT:
    Kindly file the foregoing Opinion.
    By the Court,
    -7-
    /s/ Julio M. Fuentes
    Circuit Judge
    -8-
    

Document Info

Docket Number: 02-1792

Judges: Fuentes, Stapleton, O'Kelley

Filed Date: 1/2/2003

Precedential Status: Non-Precedential

Modified Date: 11/6/2024