United States v. Geoffrey Ramer , 677 F. App'x 853 ( 2017 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4186
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
GEOFFREY ALEXANDER RAMER, a/k/a Geoffrey Alexander Ramer-
Mesen,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:14-cr-00022-MOC-1)
Submitted: November 30, 2016 Decided: February 3, 2017
Before GREGORY, Chief Judge, and KING and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
C. Fredric Marcinak, III, SMITH MOORE LEATHERWOOD, LLP,
Greenville, South Carolina, for Appellant. Jill Westmoreland
Rose, United States Attorney, Amy E. Ray, Assistant United
States Attorney, Leslie R. Caldwell, Assistant Attorney General,
Sung-Hee Suh, Deputy Assistant Attorney General, Jeremy R.
Sanders, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Based on his role in an international telemarketing scam,
Geoffrey Alexander Ramer pled guilty to conspiracy to commit
wire fraud, eight counts of wire fraud and aiding and abetting,
conspiracy to commit money laundering, and four counts of
international money laundering and aiding and abetting. The
district court sentenced Ramer to 108 months’ imprisonment, and
he now appeals, challenging the district court’s calculation of
his Sentencing Guidelines range and the procedural
reasonableness of his sentence. We affirm.
Ramer first argues that the Government failed to present
evidence at his sentencing hearing regarding his leadership
role, the number and vulnerability of victims, and the amount of
loss attributable to him. However, we conclude that Ramer has
waived appellate review of these claims. We have recognized
that “[a] party who identifies an issue, and then explicitly
withdraws it, has waived the issue.” United States v. Robinson,
744 F.3d 293, 298 (4th Cir. 2014) (internal quotation marks
omitted). “[W]hen a claim is waived, it is not reviewable on
appeal, even for plain error.” Id.; see also United States v.
Williams, 29 F.3d 172, 174-75 (4th Cir. 1994) (holding that
sentencing stipulation on issue waives right to appeal that
issue).
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Ramer raised these Guidelines calculation issues in his
objections to the presentence report, and he later agreed to a
sentencing stipulation that specifically resolved his
objections. Indeed, defense counsel agreed at Ramer’s
sentencing hearing that the sentencing stipulation resolved all
of Ramer’s objections to the presentence report and even relied
on the stipulation to argue for a lesser sentence. We find it
disingenuous for Ramer to now claim that the Government was
required to introduce evidence at the sentencing hearing on
these issues.
Moreover, contrary to Ramer’s argument, the Supreme Court’s
decision in Molina-Martinez v. United States, 136 S. Ct. 1338
(2016), does not require us to review his waived arguments. In
Molina-Martinez, the Supreme Court observed that “a court of
appeals has discretion to remedy a forfeited error,” or an error
that “has not been intentionally relinquished or abandoned.”
Id. at 1343. Here, by agreeing to the sentencing stipulation,
Ramer “intentionally relinquished” his ability to appeal the
Guidelines calculation issues that he now argues. Id.
Next, Ramer contends that his sentence is procedurally
unreasonable for two reasons. First, Ramer asserts that the
district court failed to consider any of the 18 U.S.C. § 3553(a)
(2012) factors other than deterrence. Second, Ramer argues that
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the district court neglected to address his arguments for a
downward variance.
A sentence is procedurally reasonable if the district court
properly calculates the defendant’s advisory Guidelines range,
gives the parties an opportunity to argue for an appropriate
sentence, considers the § 3553(a) factors, and sufficiently
explains the selected sentence. Gall v. United States, 552 U.S.
38, 49-51 (2007). As we have explained, “[r]egardless of
whether the district court imposes an above, below, or within-
Guidelines sentence, it must place on the record an
individualized assessment based on the particular facts of the
case before it.” United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (internal quotation marks omitted). The
explanation must be sufficient to allow for “meaningful
appellate review,” such that we need “not guess at the district
court’s rationale.” Id. at 329, 330 (internal quotation marks
omitted). Furthermore, “[w]here the defendant or prosecutor
presents nonfrivolous reasons for imposing a different sentence
than that set forth in the advisory Guidelines, a district judge
should address the party’s arguments and explain why he has
rejected those arguments.” Id. at 328 (internal quotation marks
omitted).
Insofar as Ramer contends that the district court failed to
properly consider the § 3553(a) factors by only addressing the
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need for deterrence, we find that Ramer’s argument is meritless.
Although the district court’s statements in imposing sentence
were heavily focused on general deterrence, the court also
discussed Ramer’s personal characteristics, the seriousness of
the offense, and the need to protect the public from Ramer. Cf.
United States v. Pauley, 511 F.3d 468, 476 (4th Cir. 2007)
(recognizing that district court may “reasonably accord
significant weight to a single sentencing factor in fashioning
its sentence”). The district court clearly recognized that it
must consider the § 3553(a) factors and did so. The district
court was not required to “robotically tick through § 3553(a)’s
every subsection.” United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). Therefore, we conclude that the district court
did not commit procedural error in its consideration of the
§ 3553(a) factors.
Turning to Ramer’s second procedural unreasonableness
argument, Ramer does not specifically identify the downward
variance arguments that the district court failed to address,
but defense counsel requested a variance based on Ramer’s
personal history and characteristics, including his intelligence
and education, and the tragedy of his mother’s murder. Defense
counsel also argued in mitigation that Ramer intermittently left
Costa Rica while the scheme was ongoing, that he did not
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substantially profit from the scheme, and that he did not
particularly target elderly persons.
After some discussion with defense counsel, the district
court stated that it would not go below the stipulated
Guidelines range. While the district court did not discuss each
of Ramer’s arguments for a downward variance in rejecting his
request, the court’s remarks reflect that it considered Ramer’s
personal characteristics and his offense conduct in fashioning
his sentence. Therefore, we conclude that the district court
sufficiently addressed Ramer’s arguments for a downward
variance. Moreover, even assuming that the district court
erred, we find that the Government has demonstrated any error to
be harmless. United States v. Boulware, 604 F.3d 832, 838 (4th
Cir. 2010) (providing harmless error standard).
Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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