United States v. Sharon Ramos ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 24, 2019
Decided May 2, 2019
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 18-1683
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Indiana, South Bend Division.
v. No. 3:16CR078-001
SHARON RAMOS, Jon E. DeGuilio,
Defendant-Appellant. Judge.
ORDER
A jury found Sharon Ramos guilty of making false entries in government
records, converting government money, and wire fraud. When calculating the
Sentencing Guidelines range, the district court applied enhancements for abusing a
position of trust and obstructing justice. Ramos challenges these enhancements on
appeal. Because any error in applying the abuse-of-trust enhancement was harmless,
and the obstruction enhancement was warranted, we affirm the judgment.
No. 18-1683 Page 2
Ramos worked as a claims representative for the Social Security Administration.
Her job was to collect information about social-security recipients and enter it into a
computer program that determined, or redetermined, the proper amount for their
monthly disability payments. The Administration describes the role as
“non-supervisory” and “non-sensitive/low risk.”
The Administration employed “extensive security protocol and procedures.” It
required any entry or change by a claims representative to be supported with verifying
documentation. New information might reveal an underpayment of benefits to be
repaid to the claimant retroactively. But under its policy of “administrative finality,” the
Administration prohibited repayment of underpaid benefits for periods more than two
years in the past, except in cases of “fraud or similar fault.”
A supervisor in Ramos’s office explained at trial that a claims representative’s
work was subject to “extensive” oversight and “systematic” reviews. The Office of
Quality Review performed “regular reviews” and “quality reviews … on a systematic
basis.” Ramos’s office also conducted performance reviews of her work three times per
year. And the Office of Security and Integrity did “security reviews” on a monthly basis
“for a multitude of issues, such as Social Security application cards … [and] any other
type of change … that has security protocol and requires verification.” A calculation of
an underpayment of more than $5,000 required review by a second claims
representative, and repayments close to $5,000 could trigger an alert for the
representative’s supervisor to check them.
After Ramos’s supervisor received an alert about a repayment near $5,000, an
audit revealed that for years Ramos had been entering false information without
supporting documentation. She caused the Administration to disburse approximately
$550,000 in improper payments. Ramos, however, did not receive any personal
monetary benefit from her offenses; she said she did it to “help claimants.”
During the investigation, Ramos confessed in writing that she “knowingly”
caused erroneous payments to be issued. At trial, however, she denied that she had
ever intentionally made false entries or increased benefits to recipients who she knew
were not entitled to them; she said she had confessed under “duress.” She added that
the confession was “not accurate at all.” For example, though she had admitted in the
confession that she knew that it went against policy to repay benefits beyond the period
of administrative finality, at trial she testified that she was unfamiliar with that term.
The jury found Ramos guilty of ten counts of making false entries in government
No. 18-1683 Page 3
records, 18 U.S.C. § 2073, two counts of conversion of government money, id. § 641, and
one count of wire fraud, id. § 1343.
Before sentencing, a probation officer prepared a presentence investigation
report. She recommended a two-level enhancement for obstruction of justice, U.S.S.G.
§ 3C1.1, to which Ramos did not object. The government argued that an enhancement
for abuse of a position of trust, U.S.S.G. § 3B1.3, also should apply, and it submitted a
claims-representative job description in support. The probation officer stood by her
original report because the job description classified Ramos’s position as “non-
supervisory” and “non-sensitive/low-risk,” and, the officer said, Ramos was subject to
supervision and had limited discretion.
The district court calculated a guidelines range of 63 to 78 months in prison,
based on an offense level of 25 and a criminal history category of II. It applied the
abuse-of-trust enhancement because the job description states that most duties were
performed without supervision, and thus a claims representative had to use “judgment
and discretion” to authorize entitlements. It also applied an obstruction-of-justice
enhancement because, it concluded, Ramos had perjured herself at trial when she
denied making false entries and issuing improper payments. On its own initiative, the
court rejected a possible argument that Ramos’s denials resulted from short-term
memory problems caused by her numerous traumatic brain injuries described in the
presentence investigation report. After discussing the 18 U.S.C. § 3553(a) factors, the
court added that it would have imposed the same sentence even if the guidelines did
not consider Ramos’s position as one of trust:
In your position, you had the ability to make entries that would authorize
payments to claimants, and you were trusted to do so honestly and in a
manner consistent with the rules. Through your conduct, you violated the
trust that the Social Security Administration placed in you, and in turn, the
trust that the public places in its government to handle its funds
responsibly. If the enhancement did not apply, then the guidelines would
fail to account for that factor, which the court would consider in reaching
this same sentence.
The court sentenced Ramos below the guidelines range to 46 months in prison.
On appeal, Ramos challenges the application of the abuse-of-trust and
obstruction enhancements. We generally review a district court’s interpretation of the
No. 18-1683 Page 4
Guidelines de novo and its factual findings for clear error. United States v. DeMarco,
784 F.3d 388, 396 (7th Cir. 2015).
Ramos first argues that the district court clearly erred in finding that she had
occupied a position of trust by relying exclusively on the job description and ignoring
the trial testimony, which, she says, showed that she did not have the required
discretion in her duties. She contends that myriad policies, procedures, and security
protocols constrained her discretion and that her superiors would have quickly
detected the improper payments if not for their negligent supervision.
Ramos might be right that the district court erred in finding that Ramos occupied
a position of trust and applying the enhancement. A position of trust is “characterized
by professional or managerial discretion (i.e., substantial discretionary judgment that is
ordinarily given considerable deference).” U.S.S.G. § 3B1.3 application n.1. People in
those positions “ordinarily are subject to significantly less supervision than employees
whose responsibilities are primarily non-discretionary in nature.” Id. Ramos’s job was
“non-supervisory” and “non-sensitive/low risk,” and she was supposed to undergo
comprehensive oversight and reviews. True, Ramos’s work went largely unchecked,
but lax supervision does not establish that she had discretion vis-à-vis her position.
See United States v. Fuchs, 635 F.3d 929, 935 (7th Cir. 2011); United States v. Tiojanco,
286 F.3d 1019, 1021 (7th Cir. 2002). We have emphasized that when a defendant’s work
is subject to independent verification—even if that verification does not always occur—
she does not occupy a position of trust. Fuchs, 635 F.3d at 937. Here, Ramos’s supervisor
received alerts for suspicious payments, and these alerts were just a part of a larger,
extensive review system.
The district court relied too heavily on generalities about Ramos’s work gleaned
from the job description instead of making a more “case-specific” inquiry about what
her job entailed. Id. Although the job description states that most of the activities were
“handled without supervisory assistance,” the undisputed trial testimony showed that
Ramos had no discretion to input any information affecting disbursements without
proper verifying documentation and detailed the review system designed to monitor
her actions. The abuse-of-trust enhancement is appropriate when the defendant’s
decision-making is granted “considerable deference precisely because it cannot be
dictated entirely by, or monitored against, established protocol.” Tiojanco, 286 F.3d at 1021(emphasis added). There is no evidence that Ramos had a substantial decision-making
function; her role was, essentially, data entry.
No. 18-1683 Page 5
But we agree with the government that any error in applying the abuse-of-trust
enhancement was harmless. When a district court unambiguously explains, with
specific detail, that it would have imposed the same sentence even it was incorrect
about the applicability of an enhancement, remand is pointless. United States v. Salgado,
917 F.3d 966, 969–70 (7th Cir. 2019). Here, the district court explained that it would have
sentenced Ramos as if the enhancement applied, even if it did not, because Ramos used
her position to squander public funds. Ramos responds that this reasoning contravenes
the policy expressed in § 3B.1.3, but “[j]udges may disagree with the Guidelines based
on their own penal theory,” including analyzing the facts of a case differently under
§ 3553(a) than when considering an enhancement. See United States v. Hatch, 909 F.3d
872, 875–76 (7th Cir. 2018) (citing, inter alia, Spears v. United States, 555 U.S. 261, 265–66
(2009); United States v. Corner, 598 F.3d 411, 415 (7th Cir. 2010) (en banc)). The judge
permissibly considered the nature of Ramos’s offense under § 3553(a)(1), and his
explanation for imposing the same sentence even without the abuse-of-trust
enhancement was reasonable and unambiguous. See id. at 875; Corner, 598 F.3d at 415.
Even without the enhancement, Ramos’s 46-month sentence still would be below the
applicable guidelines range of 51 to 63 months based on an offense level of 23 and
criminal history category of II.
Regarding the obstruction-of-justice enhancement, we address as a preliminary
matter whether Ramos has waived her argument. She at least forfeited it by failing to
object to the enhancement, which still allows for plain-error review. See United States
v. Johnson, 874 F.3d 990, 1002 (7th Cir. 2017). Waiver, however, requires a “knowing and
intentional decision” to forego a right and thus forecloses appellate review. United States
v. Moody, 915 F.3d 425, 429 (7th Cir. 2019) (quoting United States v. Jaimes-Jaimes,
406 F.3d 845, 848 (7th Cir. 2005)). We have previously acknowledged that our cases are
inconsistent as to whether a defendant’s failure to object to the presentence
investigation report’s application of an enhancement constitutes waiver or forfeiture.
See United States v. Shelton, 905 F.3d 1026, 1037 n.7 (7th Cir. 2018) (comparing United
States v. Oliver, 873 F.3d 601, 610 (7th Cir. 2017) (finding forfeiture) with United States v.
Gumila, 879 F.3d 831, 837–38 (7th Cir. 2018) (finding waiver)). Here, the government has
not argued waiver nor proposed a strategic reason for Ramos to have bypassed a
challenge to the obstruction enhancement. See Moody, 915 F.3d at 429; United States
v. Barnes, 883 F.3d 955, 957 (7th Cir. 2018). Moreover, because the government asserted
that Ramos merely forfeited her challenge and responded on the merits, it may have
waived any waiver. See Hamer v. Neighborhood Hous. Servs. Of Chicago, 897 F.3d 835, 840
(7th Cir. 2018); United States v. Whitlow, 740 F.3d 433, 439 (7th Cir. 2014).
No. 18-1683 Page 6
We need not resolve these questions, however, because even if Ramos did not
waive her challenge, the district court did not err in applying the obstruction-of-justice
enhancement. Ramos argues that the district court erroneously relied only on her
general denials of guilt, which cannot serve as the basis for this enhancement. It applies
when a defendant willfully provides false testimony on a material matter. See United
States v. Stenson, 741 F.3d 827, 831 (7th Cir. 2014). As described in the presentence
investigation report, at trial Ramos contradicted her earlier confession that she had
knowingly entered false information into the Administration’s records in order to
disperse money to which the recipients were not entitled. And she also denied
knowledge of the policies prohibiting her actions, despite her confession to the contrary.
Therefore, Ramos lied about specific facts that she had previously admitted and that
were corroborated by other evidence. Her false statements were material because they
concerned information “that, if believed, would tend to influence or affect the issue
under determination,” i.e., Ramos’s guilt and the reliability of her confession. See United
States v. Chychula, 757 F.3d 615, 621 (7th Cir. 2014) (internal quotation marks and
citations omitted). The district judge adopted the presentence report, which supplied
the relevant details of Ramos’s perjurious testimony, and thus he adequately supported
the application of the obstruction enhancement. See Chychula, 757 F.3d at 621; United
States v. Long, 639 F.3d 293, 300 (7th Cir. 2011).
But Ramos contends that her denials were not willful because they resulted from
short-term memory problems caused by her numerous traumatic brain injuries.
Although false testimony that is a consequence of faulty memory cannot support an
obstruction enhancement, Chychula, 757 F.3d at 619, here, the district court reasonably
explained that it did not believe that Ramos’s denial of conduct that occurred over a
period of years was the result of short-term memory problems. This rationale supports a
finding of willfulness. See United States v. Bryant, 557 F.3d 489, 501 (7th Cir. 2009).
Further, Ramos did not testify that she could not remember making false entries,
issuing improper payments, and confessing. Instead, she flatly denied doing so,
contradicting other witnesses and evidence. Moreover, Ramos testified that she had
confessed under duress, not because of short-term memory loss—she denied facts that
she now claims she could not recall. See United States v. White, 240 F.3d 656, 661 (7th Cir.
2001).
AFFIRMED