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Precedential or Non-Precedential: Non-Precedential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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"USA v. Ramos" (2003). 2003 Decisions. Paper 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NOT PRECEDENTIAL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
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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
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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
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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).
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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:
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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,
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/s/ Julio M. Fuentes
Circuit Judge
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