Ramirez-Burgos v. U.S.

• Decision Date: 10 December 2002
• Docket Number: No. 01-1012.,01-1012.
• Citation: 313 F.3d 23
• Parties: Julio RAMIREZ-BURGOS, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

313 F.3d 23

Julio RAMIREZ-BURGOS, Petitioner, Appellant, v. UNITED STATES, Respondent, Appellee.

No. 01-1012.

United States Court of Appeals, First Circuit.

Heard October 12, 2002.

Decided December 10, 2002.

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James M. Fox for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom H.S. Garcia, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, were on brief for appellee.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, and HOWARD, Circuit Judge.

STAHL, Senior Circuit Judge.

A jury convicted petitioner Julio Ramirez-Burgos of aiding and abetting two carjackings in violation of 18 U.S.C. § 2 and § 2119, and of using a weapon during the commission of a violent crime in violation of 18 U.S.C. § 924(c). Although Count One of the superseding indictment charged Ramirez with violating 18 U.S.C. § 2119(2), the trial court did not instruct the jury to determine whether the victim of the carjacking suffered serious bodily injury as a result of the carjacking. Ramirez appeals the district court's denial of his § 2255 petition, in which he claimed that his sentence must be vacated because the Supreme Court's ruling in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), requires that the jury determine the element of serious bodily injury. We affirm.

I.

We review this case for the fourth time.¹ In 1995 a federal grand jury indicted Ramirez and Daniel Montañez-Rosa² on two counts of aiding and abetting each other in two carjackings, 18 U.S.C. §§ 2 and 2119, and on one count of using a firearm during the commission of a violent crime, 18 U.S.C. § 924(c). The defendants were charged under the 1992 version of 18 U.S.C. § 2119,³ which provided, in relevant part:

Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle ... [from] another by force and violence or by intimidation, or attempts to do so, shall —

(1) be fined ... or imprisoned not more than 15 years or both

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both....

* * * *

As is apparent from the text of the statute, the default maximum sentence for a carjacking is fifteen years, id. § 2119(1), but if the carjacking results in "serious bodily injury," the maximum statutory penalty is increased to twenty-five years, id. § 2119(2).

Count One charged Ramirez and Montañez with aiding and abetting each other in taking, while armed, a motor vehicle from Nancy Rosado-Santiago

by force, violence or intimidation, to wit: by forcing her to remain in the car, at gunpoint, and forcibly assaulting her sexually, resulting in serious bodily injury, as defined in [18 U.S.C.] section 1365, namely bodily injury which involves a substantial risk of death and extreme physical pain. All in violation of 18 United States Code, Sections 2119(2) and 2.

The trial court read the entire indictment to the jury, including the above-quoted language. Despite that reading, the court did not instruct the jury under § 2119(2). Rather, its instruction referred solely to the elements set forth in the first paragraph of § 2119. The court, however, did provide the jury for its deliberation a copy of the superseding indictment, which included Count One, quoted above. Trial counsel did not object to the jury instructions as given.⁴

The jury returned a verdict of guilty on all three counts. The trial evidence showed that, before relinquishing control over Rosado and her vehicle, one of the carjackers forced her to undress and then raped her. In both written exceptions filed in response to the Pre-Sentence Investigative Report and at the sentencing hearing, Ramirez objected to a recommended four-point enhancement for serious bodily injury, under U.S.S.G. § 2B3.1(B)(3), being applied to his conviction for the carjacking of Rosado. He claimed that there was insufficient evidence to support a finding of serious bodily injury to support the enhancement. However, he did not argue that the maximum available sentence for the carjacking of Rosado was fifteen years because of the failure to instruct the jury to determine, beyond a reasonable doubt, that Rosado suffered serious bodily injury.

The district court flatly rejected Ramirez's objection, noting that the jury had found Ramirez guilty under § 2119(2). He then determined that there was sufficient evidence of serious bodily injury to enhance Ramirez's sentence by four points under U.S.S.G. § 2B3.1(B)(3). In the end, the court sentenced Ramirez to a term of 360 months as to Counts One and Two, to be served concurrently, and 60 months as to Count Three, to be served consecutively to Counts One and Two.

Ramirez, pro se, appealed his convictions and sentence. But he assigned no error to the court's jury instructions, nor did he claim that he was deprived of due process or of his right to jury trial because no "serious bodily injury" instruction was provided to the jury. In fact, relying on our decision in United States v. Rivera-Gomez, 67 F.3d 993, 1000 (1st Cir.1995), Ramirez challenged the denial of his motion in limine on the ground, inter alia, that serious bodily injury was a sentencing factor. We affirmed his convictions, but vacated his sentence and remanded for resentencing because the sentence imposed by the district court exceeded the maximum sentence available under the statute. United States v. Ramirez-Burgos, No. 96-1298, 1997 WL 268695 (1st Cir. May 21, 1997); see also 18 U.S.C. § 2119(2) (providing for a term of 300 months for carjacking that results in serious bodily injury). On remand, the district court resentenced Ramirez to 300 months as to Count One, but erroneously entered an identical concurrent 300-month term for Count Two, which lacked serious bodily injury and thus had a statutory maximum of fifteen years under § 2119(1). Ramirez again appealed, this time with appointed counsel, who raised a number of objections to the convictions and sentence.⁵ Moreover, appointed counsel did not raise the claim now raised in the § 2255 petition.

On March 24, 1999, one day after the filing of Ramirez's reply brief, the Supreme Court decided Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Supreme Court held that subsections (1)-(3) of § 2119 are "three separate offenses ... [with] distinct elements, each of which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." Id. at 251-52, 119 S.Ct. 1215. Ramirez did not raise the Jones issue at trial, nor during the pendency of the second appeal, in a supplemental brief or a 28j letter.

Two months after the Jones decision and without reference to it, we vacated Ramirez's sentence as to Count Two, on the ground that it exceeded the statutory maximum of fifteen years under 18 U.S.C. § 2119(1). United States v. Ramirez-Burgos, No. 98-1995, 1999 WL 525916 (1st Cir. May 18, 1999).

II.

On May 24, 2000, seeking to take advantage of the Jones decision, Ramirez brought a motion to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. He argued that the district court should vacate his sentence because the jury did not determine beyond a reasonable doubt whether Rosado suffered serious bodily injury. In the alternative, he alleged that his appellate counsel's failure to advise this Court of the Jones decision on his second appeal amounted to ineffective assistance of counsel. The district court denied his petition.

We granted a certificate of appealability, 28 U.S.C. § 2253(c), as to (1) whether appellate counsel's failure to advise this Court of the Jones decision constituted ineffective assistance of counsel, (2) whether Ramirez's prior default of the Jones issue barred him from raising it for the first time on collateral review, and (3) whether Jones entitles him to relief.

III.

For Ramirez to prevail on his ineffective assistance of counsel claim, he must establish (1) that, by failing to advise this Court of the Jones decision, his appellate counsel's performance "fell below an objective standard of reasonableness," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors," he would have prevailed on his Jones claim on his second appeal. Strickland v. Washington, 466 U.S. 668, 686-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Murray v. Carrier, 477 U.S. 478, 485, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (holding that the Strickland standard applies to trial and appellate counsel). We find it unnecessary to determine whether Ramirez's appellate counsel was unreasonable in failing to raise a Jones claim, for even if we assume that he was, his claim would have failed under Strickland's second prong.

Because Ramirez failed to object to the jury instructions or otherwise raise a Jones-type claim at trial, we would not have granted relief on his second appeal unless Ramirez established that the Jones error was plain under Fed.R.Crim.P. 52(b). See United States v. Perez-Montañez, 202 F.3d 434, 441-43 (1st Cir.2000) (holding that, on direct appeal, plain error review applies where the Jones argument was not preserved at trial); cf. United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (holding that a defendant's failure to object to Apprendi⁶ error at trial engenders plain error review on direct appeal); Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (holding that "the omission of an element [in a jury instruction] is an error that is subject to harmless-error analysis."). "Under that test, before an appellate court can correct an error not raised at trial, there must be (1) `error,' (2) that is `plain,' and (3) that `affect[s] substantial rights.'" Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quoting ...