U.S. v. Ramirez

• Decision Date: 09 December 1993
• Docket Number: No. 93-1403,93-1403
• Citation: 11 F.3d 10
• Parties: UNITED STATES, Appellee, v. Ediberto RAMIREZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 10

11 F.3d 10

UNITED STATES, Appellee, v. Ediberto RAMIREZ, Defendant, Appellant.

No. 93-1403.

United States Court of Appeals, First Circuit.

Submitted Nov. 24, 1993.

Decided Dec. 9, 1993.

Francis R. Williams, on brief for appellant.

Edwin J. Gale, U.S. Atty., Margaret E. Curran and Lawrence D. Gaynor, Asst. U.S. Attys., on brief for appellee.

Before BREYER, Chief Judge, SELYA and CYR, Circuit Judges.

PER CURIAM.

Defendant-appellant Ediberto Ramirez pleaded guilty to a two-count indictment which charged him, after having been convicted of a felony, with possession of a firearm and of ammunition, respectively, in violation of 18 U.S.C. Sec. 922(g). The presentence investigation report (PSI Report) stated that Ramirez was observed firing the weapon in a public place. Imposing sentence under the federal sentencing guidelines and departing upward from the applicable guideline sentencing range, the district court sentenced appellant to a 37-month prison term and a 3-year supervised release term. The court further ordered that appellant be remanded to the custody of immigration authorities for deportation proceedings upon his release. Ramirez appeals from his sentence. We affirm.

A.

The PSI Report recommended that Ramirez be assigned eleven criminal history points based on his prior criminal convictions and on the fact that the instant offense occurred while he was under a sentence of probation for a previous offense. It then listed the following prior criminal conduct as an adult: three charges of assault with a dangerous weapon (once a broom handle, once a BB gun, and once a handgun), the last of which is still pending; and one charge of driving to endanger, death resulting (associated with a charge of possessing a stolen motor vehicle), which is still pending. Finally, the PSI Report listed two "factors that may warrant departure": (1) that several of appellant's prior convictions were consolidated for sentencing, and as a result were "undercounted" in the calculation of his criminal history score, and (2) that the offense of conviction was committed while Ramirez was free on bail.

In announcing its decision to depart upward, the district court stated:

I have reviewed the pre-sentence report and considered the objections of the defendant to an upward departure. It seems to me that this is a case in which upward departure is not only justified, it's required. We have a defendant who is 19 years or so old, who has never had a job so far as I can see, whose sole occupation is taking other people's property and who is escalating this conduct from assaulting somebody with a broomstick to firing a firearm in the air, the carrying of a firearm. It seems to me the charge itself that he's here on doesn't really indicate the seriousness of the conduct that's involved here and it seems to me that the computation significantly under-represents the seriousness of the past criminal conduct and the likelihood of the commission of further crime in the circumstance. Here the record pretty fairly shows that the defendant is content to accomplish nothing but violations of the law. Although he does indicate that he is sorry this happened, takes responsibility for it, it's pretty clear to me that this record doesn't justify, or this record results in under-representation. I'm going to depart--

. . . . .

You're 20 years old and you've never had a job and you tell me that you don't know anything about earning respect because you haven't been respected. Your mother has to work very hard to support you. It's about time you took some of the responsibility for what you do. It's not the alcohol that drives these cars away, get into accidents in which people get killed. Not the alcohol that does that. It's not the alcohol that steals the cars. You're apparently not so drunk that you can't steal a car and drive it. It's you driving the car, not the alcohol. It's you stealing and then escalating the cars one after another. It's you assaulting somebody with a broomstick and then a BB gun and then finally running around with a loaded pistol firing it in the air. It's not the alcohol that's firing that gun. It's not the alcohol that possesses that gun. It's you. How many other people's lives are in jeopardy because you don't take responsibility for what you're doing, until push comes to shove, until you're here and you know you're really facing some time, you know you're really going to jail for the first time. I think you need some time to think about what the future of your life is going to be, really, really think about it.

The district court, by its reference to the PSI Report in the context of elaborating the reasons for an upward departure, appears to have based its decision to depart, at least in part, on the two possible grounds for departure suggested by the probation department. On appeal, Ramirez raises no objection to either of those two grounds. Rather, his sole challenge on appeal is to what he characterizes as the district court's decision to depart upward on the basis of his prior arrest record.

His challenge has two prongs. First, he argues that an upward departure on the basis of a prior arrest record is forbidden by U.S.S.G. Sec. 4A1.3, which states that "a prior arrest record itself shall not be considered under Sec. 4A1.3." Second, he argues that the district court "had not adequately explained the factual basis for its use of those arrests as a ground for departure."

B.

We disagree with Ramirez's characterization of the district court's departure as impermissibly based on his prior arrest record itself. U.S.S.G. Sec. 4A1.3 states: "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. Such information may include, but is not limited to, information concerning: ... (e) prior similar adult criminal conduct not resulting in a criminal conviction." To be sure, the guideline goes on to state that "a prior arrest record itself shall not be considered" for this purpose. But, so long as that limitation is observed, prior similar adult criminal conduct is a basis on which the Sentencing Commission has "encouraged" upward departures. United States v. Rivera, 994 F.2d 942, 948 (1st Cir.1993). We conclude that the district court's upward departure is permissible if it was made on the basis of reliable evidence of prior similar adult criminal conduct, even though the conduct did not result, or had not yet resulted, in convictions.

C.

We turn next to whether the particular circumstances cited by the district court "are of a kind or degree that they may appropriately be relied upon to justify departure." Id. at 950. In this instance, that question boils down to whether the prior conduct is "similar" to the offense of conviction, as required by U.S.S.G. Sec. 4A1.3(e).

The offense of conviction, again, is possession of a firearm, under circumstances in which Ramirez, in a public place, discharged the firearm in the air. The similarity between this offense and appellant's prior alleged conduct involving assault with a broom handle, a BB gun, and a handgun,--possession and/or threatened use of a dangerous weapon--is clear. See United States v. Tabares, 951 F.2d 405, 411 (1st Cir.1991) (assuming that prior conduct involving possession of a dangerous weapon and assault with a deadly weapon was similar to possession of a firearm); United States v. Cota-Guerrero, 907 F.2d 87, 89 (9th Cir.1990) ("Inasmuch as they show a propensity toward violence and a willingness to use force, these crimes [assault with a deadly weapon and...