United States v. Sergio Ramirez-Morazan

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4653
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO RENE RAMIREZ-MORAZAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
Senior District Judge. (5:11-cr-00018-H-1)
Argued: December 7, 2012 Decided: January 8, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Joshua L.
Rogers, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Raleigh, North Carolina, for Appellant. Thomas
G. Walker, United States Attorney, Jennifer P. May-Parker,
Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sergio Rene Ramirez-Morazan entered a guilty plea to one
count of unlawful entry into the United States, in violation of
8 U.S.C. § 1326(a) and (b)(2). The district court sentenced
Ramirez-Morazan to a term of 46 months’ imprisonment, at the low
end of his advisory Sentencing Guidelines range. On appeal,
Ramirez-Morazan primarily contends that the district court
committed procedural error in allegedly stating that it lacked
authority to impose a lower sentence under 18 U.S.C. § 3553(a),
on the basis that the district in which he was sentenced did not
have a “fast track” sentencing program. 1 Upon our review, we
hold that the district court did not commit procedural error,
and we affirm the district court’s judgment imposing sentence on
Ramirez-Morazan.
1
“‘Fast-tracking’ refers to a procedure originally approved
for use in states along the United States-Mexico border, where
district courts experienced high caseloads as a result of
immigration violations.” United States v. Perez-Pena, 453 F.3d
236, 238 (4th Cir. 2006). Federal prosecutors employing this
procedure seek pre-indictment guilty pleas from eligible
individuals in exchange for a motion for downward departure
under § 5K3.1, p.s., of the United States Sentencing Guidelines
Manual. Under directive of the United States Department of
Justice, this procedure now is approved for use by federal
prosecutors throughout the United States. Memorandum from James
M. Cole, Deputy Attorney General, to all United States Attorneys
(Jan. 31, 2012), available at: http://www.justice.gov/dag/fast-
track-program.pdf.
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I.
In August 2009, Ramirez-Morazan was arrested in Raleigh,
North Carolina, on drug-trafficking charges. Thereafter, United
States Immigration and Customs Enforcement officers initiated a
“background” investigation of Ramirez-Morazan, which determined
the following facts. Ramirez-Morazan, a citizen of El Salvador
who was living in the United States illegally, had been deported
on three prior occasions: from California in 1992, from Texas in
1993, and from Arizona in 2002. Among other criminal
convictions, Ramirez-Morazan had a California state felony
conviction in 1991 for “Possession of Marijuana for Sale” (the
marijuana conviction).
In January 2011, Ramirez-Morazan was charged in the United
States District Court for the Eastern District of North Carolina
on one count of being present unlawfully in the United States
after having been deported on each of three prior occasions, and
after having been convicted of an aggravated felony, namely, the
marijuana conviction, all in violation of 8 U.S.C. § 1326(a) and
(b)(2). Ramirez-Morazan pleaded guilty to the charge as stated
in the indictment.
A presentence report (the PSR) was prepared for Ramirez-
Morazan, in which the probation officer recommended an advisory
Guidelines range of between 46 and 57 months’ imprisonment. At
the sentencing hearing, the district court adopted the PSR’s
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findings without objection. The court also discussed Ramirez-
Morazan’s background, expressing concern about his three prior
deportations and his criminal history involving the felony
marijuana conviction.
During the hearing, Ramirez-Morazan initially asked the
district court “to consider the disparity” caused by “the lack
of any kind of fast track or early dispositions program in this
district compared to other districts.” He argued that he “may
qualify for one or more of the different types of programs,”
because, among other things, he promptly pleaded guilty and
otherwise cooperated with prosecutors, and also was willing to
be deported immediately. Ramirez-Morazan contended that the
purposes of sentencing could be achieved by imposition of a
lower sentence in his case, just as those sentencing purposes
are fulfilled when similarly-situated defendants in other
districts are sentenced under fast track programs.
The district court stated, “I don’t have that authority.”
The court further stated that “there are districts with the fast
track program,” but that “[o]ur district has never had that
issue or had that authority, and so I can’t depart on that
basis.”
In response, Ramirez-Morazan clarified that he was “not
asking the Court to proclaim a fast track sentence.” He
explained that, instead, he was asking the court to “take []
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into consideration under 3553(a)” the disparity created by the
lack of a fast track program in the district, his cooperative
behavior in this case, and his willingness to be deported
immediately. Ramirez-Morazan thereafter asked the district
court to impose a lower sentence on those grounds.
The district court did not directly address this argument.
The court considered Ramirez-Morazan’s advisory Guidelines range
and the factors set forth in § 3553(a), and imposed a sentence
of 46 months’ imprisonment. Ramirez-Morazan timely appealed.
II.
We review a sentence imposed by a district court under a
deferential abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 41 (2007). In conducting our review, “we
must first ensure that the district court has not committed any
‘significant procedural error.’” United States v. King, 673
F.3d 274, 283 (4th Cir.), cert. denied, 133 S. Ct. 216 (2012)
(citation omitted). Such procedural errors include “failing to
calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen
sentence.” United States v. Susi, 674 F.3d 278, 282 (4th Cir.
2012) (quoting Gall, 552 U.S. at 51). Only after we determine
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that a sentence was imposed without significant procedural error
do we consider its substantive reasonableness. 2 United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Ramirez-Morazan’s main contention on appeal is that the
district court committed procedural error: (1) by allegedly
stating that it lacked “authority” under § 3553(a) to consider
sentencing disparities resulting from the absence of a fast
track sentencing program in a particular district; and (2) by
rejecting the defendant’s request for a sentence below his
Guidelines range. According to Ramirez-Morazan, this type of
sentencing disparity is a permissible consideration under
Kimbrough v. United States, 552 U.S. 85 (2007). Thus, Ramirez-
Morazan contends that Kimbrough casts doubt on our decision in
United States v. Perez-Pena, 453 F.3d 236, 243-44 (4th Cir.
2006), in which we held that sentencing disparities resulting
from the limited availability of fast track sentencing programs
were not “unwarranted” disparities, within the meaning of
§ 3553(a)(6), and thus could not serve to support sentence
variances on that basis.
We do not address the merits of this argument, however,
because the argument is based on a false premise. The record
2
Because Ramirez-Morazan does not contest the substantive
reasonableness of his sentence, we limit our discussion to the
procedural reasonableness inquiry.
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before us refutes Ramirez-Morazan’s characterization of the
district court’s ruling. The sentencing hearing transcript,
quoted in relevant part above, reflects that the district court
did not indicate that it lacked “authority” to consider under
§ 3553(a) sentencing disparities resulting from the availability
of a fast track sentencing program in a given district. Rather,
the district court’s statement that it lacked “authority”
related to Ramirez-Morazan’s initial argument that he should
receive a below-Guidelines sentence simply because he met the
requirements of fast track programs available in other
districts.
We conclude that the district court did not commit
procedural error in its application of § 3553(a). The court was
not required to “robotically tick through” every subsection of
§ 3553(a), United States v. Johnson, 445 F.3d 339, 345 (4th Cir.
2006), as long as the court conducted an “individualized
assessment based on the facts presented,” Gall, 552 U.S. at 50.
Despite Ramirez-Morazan’s conclusory statement to the contrary,
the district court gave adequate, individualized consideration
to his offense, his criminal history, and his background, and
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imposed a sentence only after weighing the advisory Guidelines
range and the § 3553(a) factors. 3
We also have considered Ramirez-Morazan’s other arguments,
and we conclude that they have no merit. 4 Accordingly, we affirm
the district court’s judgment imposing sentence on Ramirez-
Morazan.
AFFIRMED
3
Ramirez-Morazan’s argument that the district court treated
the Guidelines as mandatory also is refuted by the record. The
court recognized that the Guidelines were “advisory,” and stated
that the sentence was imposed in conformance with United States
v. Booker, 543 U.S. 220 (2005).
4
At oral argument, Ramirez-Morazan argued that the district
court erred under United States v. Lynn, 592 F.3d 572 (4th Cir.
2010), because the court did not address adequately the issue
whether the absence of a fast track program in the district
could be considered under § 3553(a). Ramirez-Morazan also
argued that if the district court thought that it lacked
authority to depart below Ramirez-Morazan’s recommended
Guidelines range because he was not sentenced in a fast-track
district, that conclusion also constituted procedural error
under Kimbrough. These issues are waived, however, because they
were not raised in Ramirez-Morazan’s opening brief on appeal.
See United States v. Hudson, 673 F.3d 263, 268 (4th Cir. 2012).
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