United States v. Ramirez-Gutierrez

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2937
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAUL RAMIREZ-GUTIERREZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 220-1—Ruben Castillo, Judge.
____________
ARGUED AUGUST 7, 2007—DECIDED OCTOBER 1, 2007
____________
Before BAUER, KANNE, and ROVNER, Circuit Judges.
KANNE, Circuit Judge. Raul Ramirez-Gutierrez, a
Mexican citizen, pleaded guilty to reentering the United
States illegally after being deported. See 8 U.S.C.
§ 1326(a), (b)(2). He sought a sentence below the advisory
guidelines range based on several mitigating factors,
including the unpleasant conditions of his pretrial con-
finement and his drug and alcohol dependency. The
district court sentenced him to 72 months’ imprisonment,
which was within the guidelines’ recommended range.
Ramirez-Gutierrez now argues that the district court did
not consider his arguments for a lower sentence. Because
the district judge considered Ramirez-Gutierrez’s non-
2 No. 06-2937
frivolous arguments, and because his sentence is rea-
sonable, we affirm.
Background
Ramirez-Gutierrez was convicted of armed robbery and
aggravated battery in 1992. He was deported following
his parole in 1996, but soon returned illegally. In 2005
Ramirez-Gutierrez was convicted in Illinois state court of
criminal sexual abuse by force and possession of cocaine.
His physical presence in Illinois was the basis for the
charge of illegal entry, to which he entered a guilty plea
without a plea agreement.
Before sentencing, Ramirez-Gutierrez’s lawyer sub-
mitted a written request for a sentence below the guide-
lines’ range. He argued for a lower sentence based on his
status as a deportable alien, the conditions of his 2½-
month pretrial detention, his impoverished upbringing
in Mexico, the sexual abuse he suffered as a child, and
his drug and alcohol dependency.
At sentencing, the district judge said that he had read
Ramirez-Gutierrez’s submission and the government’s
response and gave each side an opportunity to advance
additional arguments. Ramirez-Gutierrez’s attorney
rested on his written submission. In his allocution,
Ramirez-Gutierrez told the judge about his impoverished
upbringing in Mexico and his remorse for his prior crimes,
which he said were the result of poor decision-making
caused by his substance abuse. He also emphasized the
effect of his imprisonment on his mother and his seven-
year-old daughter, and requested placement in a Texas
prison so that they could visit him more easily.
Ramirez-Gutierrez did not object to the district judge’s
final guidelines calculation. With a base offense level of
eight, see U.S.S.G. § 2L1.2(a), increased by 16 points
No. 06-2937 3
because he had been deported after being convicted for
a crime of violence, id. § 2L1.2(b)(1)(A)(ii), and then
reduced by three points for his acceptance of responsibility,
id. § 3E1.1, Ramirez-Gutierrez’s adjusted offense level
was 21. With a criminal history score of V, Ramirez-
Gutierrez’s advisory guidelines range was 70 to 87 months.
See id. ch. 5, pt. A.
The district judge began his sentencing decision by
telling Ramirez-Gutierrez that his crimes “give im-
migrants to the United States a bad name.” The judge
then remarked that he might have been inclined to view
as a youthful mistake Ramirez-Gutierrez’s armed robbery
conviction at the age of 18, but that his later convictions
for sexual abuse by force and cocaine possession—both
obtained while in his thirties—could not be excused.
Although the judge believed that Ramirez-Gutierrez
finally might have “seen the light,” the judge determined
that, based on his criminal record, his background, the
nature of the offense, and the need to deter, a within-
guidelines sentence was appropriate. The judge sen-
tenced him to 72 months’ imprisonment, with a recommen-
dation to the Bureau of Prisons that he serve his time
in a Texas prison, as well as two years’ supervised release
and a $100 special assessment. The judge also recom-
mended that Ramirez-Gutierrez participate in a drug
treatment program.
Analysis
Ramirez-Gutierrez now asserts that, in failing to ad-
dress explicitly two of his arguments for a lower sen-
tence, the district judge abused his discretion.
He first argues that the district judge ignored his
argument that he should receive a shorter sentence to
“compensate” for his 2½-month pretrial stay at the
4 No. 06-2937
Kankakee County Detention Center, where he says he
was denied care for his toothache, lived in poorly venti-
lated quarters, and was not able to exercise. He contends
that the argument—which was raised in his written
submission, but not at sentencing—was not frivolous, and
thus warranted explicit discussion by the district judge.
He relies primarily on two out-of-circuit decisions hold-
ing, prior to United States v. Booker, 543 U.S. 220 (2005),
that extreme conditions of pretrial confinement could be
a mitigating circumstance that would justify a down-
ward departure. See United States v. Pressley, 345 F.3d
1205, 1219 (11th Cir. 2003); United States v. Carty, 264
F.3d 191, 196 (2d Cir. 2001) (per curiam).
Because Ramirez-Gutierrez’s sentence falls within the
guidelines’ recommended range, this court will presume
it is reasonable unless he can show that the district
court did not consider adequately the sentencing factors
enumerated in 18 U.S.C. § 3553(a). See United States v.
Gama-Gonzalez, 469 F.3d 1109, 1110-11 (7th Cir. 2006);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). Harsh or unpleasant conditions of pretrial con-
finement are not among the § 3553(a) factors, and we have
not decided whether such conditions could ever justify
a reduced sentence, United States v. Cardenas, 68 Fed.
App’x 731, 731-32 (7th Cir. 2003) (pre-Booker unpublished
order). Nonetheless, as Ramirez-Gutierrez points out,
both the Second and the Eleventh Circuits held, prior to
Booker, that “extraordinary” conditions of pretrial confine-
ment could justify a downward departure because the
Sentencing Commission likely had not considered such
conditions when formulating the guidelines. See Pressley,
345 F.3d at 1218-19; Carty, 264 F.3d at 196. On the
other hand, the Eighth Circuit reversed a downward
departure on this ground where there was no evidence
that the conditions of confinement “were so substandard
or onerous as to take [the] case out of the heartland of
No. 06-2937 5
cases.” United States v. Dyck, 334 F.3d 736, 742-43 (8th
Cir. 2003). Thus, under these courts’ reasoning, conditions
of confinement might warrant a sentencing judge’s at-
tention if a defendant can show that the conditions were
unusually harsh.
Even if we accept Ramirez-Gutierrez’s description of
the conditions of his confinement as true, see United
States v. Rodriguez-Alvarez, 425 F.3d 1041, 1048 (7th Cir.
2005), they were not unusually harsh. Ramirez-Gutierrez
complained that he was unable to obtain care for his
broken tooth, lived in poorly ventilated quarters, and was
given inadequate opportunity to exercise during his 2½-
month detention. In contrast, in Pressley, the defendant
spent six years in pre-sentence confinement, five years of
which he was subjected to 23-hour-a-day lockdown and
was not allowed outside. 345 F.3d at 1219. And in Carty,
the defendant was detained eight months in a Dominican
prison, where he was held in an unlit four-by-eight-
foot cell with three or four other inmates, had no access
to running water, paper, pens, newspaper, or radio, and
was allowed only one phone call per week. 264 F.3d at 193.
Ramirez-Gutierrez’s relatively brief confinement, while
unpleasant, does not compare. And, like the defendant
in Dyck, he presented no evidence to suggest that the
conditions were “so substandard or onerous” as to warrant
special consideration by the district court. See 334 F.3d
at 742-43. Absent truly egregious conditions, the pre-
trial confinement of Ramirez-Gutierrez raises neither a
meritorious nor a substantial issue for sentencing pur-
poses.
The judge said that he had read Ramirez-Gutierrez’s
submission, which is enough to satisfy us that he consid-
ered the argument and rejected it. See United States v.
Cunningham, 429 F.3d 673, 678 (7th Cir. 2005) (“argu-
ments clearly without merit can, and for the sake of
6 No. 06-2937
judicial economy should, be passed over in silence.”). The
judge’s failure to discuss explicitly the insubstantial
argument “would be at worst a harmless error,” id. at 679.
See United States v. Acosta, 474 F.3d 999, 1003-04 (7th
Cir. 2007); Gama-Gonzalez, 469 F.3d at 1111.
Ramirez-Gutierrez also argues that the judge did not
consider his argument that he committed crimes because
of his substance abuse problem. But the record plainly
shows that the judge did. Responding to Ramirez-
Gutierrez’s acknowledgment of his substance abuse
problem, the district judge remarked that Ramirez-
Gutierrez might have “seen the light,” and later recom-
mended that he enroll in a drug treatment program in
prison. But the judge explained that Ramirez-Gutierrez
deserved a within-guidelines sentence because of his
substantial criminal history—which included recent
convictions for sexual abuse by force and cocaine posses-
sion, in addition to older convictions for armed robbery
and aggravated battery. Any further exposition on the
subject would have been unnecessary; a defendant’s
substance abuse problem rarely will compel a lower
sentence. United States v. Wurzinger, 467 F.3d 649, 654
(7th Cir. 2006); United States v. Hankton, 463 F.3d 626,
630 (7th Cir. 2005). The district judge, reasonably, was
more concerned with Ramirez-Gutierrez’s history of vio-
lent crimes.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-1-07