U.S. v. Ramirez

• Decision Date: 28 January 2009
• Docket Number: No. 07-40442.,07-40442.
• Citation: 557 F.3d 200
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Francis Javier RAMIREZ, also known as Javier Antonio Ramirez, also known as Javier Antonio Ramirez-Cermeno, also known as Javier Mario Lopez, also known as Pelon, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

557 F.3d 200

UNITED STATES of America, Plaintiff-Appellee, v. Francis Javier RAMIREZ, also known as Javier Antonio Ramirez, also known as Javier Antonio Ramirez-Cermeno, also known as Javier Mario Lopez, also known as Pelon, Defendant-Appellant.

No. 07-40442.

United States Court of Appeals, Fifth Circuit.

January 28, 2009.

Steven Buys (argued), Sherman, TX, for U.S.

Robert Gerard Arrambide (argued), Fed. Defender's Office, Sherman, TX, Amy R. Blalock, Asst. Fed. Public Defender, Tyler, TX, for Javier Ramirez.

Appeal from the United States District Court for the Eastern District of Texas.

Before DAVIS, STEWART and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant Frances Javier Ramirez appeals his sentence imposed on a charge of illegal reentry of a deported alien. Our decisions in this appeal are colored by the standard of review—plain error—which applies because the defendant did not raise the issues in this appeal before the district court. Under this standard, we find no plain error and affirm.

I.

Ramirez pleaded guilty without the benefit of a plea agreement to reentry of a deported alien. The presentence report (PSR) recommended a base offense level of 8 pursuant to U.S.S.G. § 2L1.2(a). The PSR further recommended a 16-level adjustment pursuant to § 2L1.2(b)(1)(A)(ii) based upon a 2003 New Jersey conviction for aggravated assault, which the PSR characterized as a "crime of violence" (COV). After a three-level reduction for acceptance of responsibility, Ramirez's total offense level was 21. His total offense level of 21 and criminal history category of IV resulted in an advisory guidelines range of imprisonment of 57 to 71 months.

Ramirez objected to the 16-level adjustment on the ground that the alleged New Jersey conviction was not supported by sufficient documentation. In response to that objection, the probation officer obtained further documentation regarding that conviction. Ramirez then withdrew his objection. At sentencing, the district court held that the prior conviction for aggravated assault was properly considered in assessing the 16-level adjustment and that it had made an independent determination that the aggravated assault conviction met the definition of a COV offense. Ramirez was sentenced to 71 months of imprisonment and three years of supervised release. Ramirez filed a timely notice of appeal.

The Federal Public Defender (FPD) appointed to represent Ramirez on appeal filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but this court denied that motion and instructed the FPD to file a merits brief regarding the imposition of the 16-level § 2L1.2(b)(1)(A) adjustment based upon Ramirez's prior New Jersey conviction for aggravated assault.

II.

In its appellate brief, the Government sua sponte informed the court that there may be an alternate ground on which Ramirez may challenge the 16-level enhancement based on this court's March 26, 2008, opinion in United States v. Rojas-Luna, 522 F.3d 502, 506-07 (5th Cir.2008). In Rojas-Luna this court held that the district court's use of the fact of Rojas-Luna's 2006 removal to increase his sentence beyond the statutory maximum sentence allowed under § 1326(a) was reversible plain error because the fact of the 2006 removal had not been admitted by Rojas-Luna or proven beyond a reasonable doubt to a jury.

The threshold question is whether this court should address this potential error because the defendant did not raise it below or in his opening brief. This court does not entertain arguments raised for the first time in a reply brief. United States v. Aguirre-Villa, 460 F.3d 681, 683 n. 2 (5th Cir.2006). However, this court views the situation differently when a new issue is raised in the appellee's brief and the appellant responds in his reply brief. Cousin v. Trans Union Corp. 246 F.3d 359, n. 22 (5th Cir.2001) and Vallecillo v. United States HUD, 155 Fed.Appx. 764, 766 n. 1 (5th Cir.2005). In that situation, the court avoids the more unfair scenario that occurs when "an appellant raises a completely new issue in its reply brief, disadvantaging the appellee, and for which the procedural bar concerning initial briefs was properly developed and utilized." Cousin, 246 F.3d at 373. This situation is not present in this case because the government raised the issue presented by Rojas-Luna eliminating any surprise. At least one case suggests that this court has the discretion to address this issue. See Piney Woods Country Life School v. Shell Oil Co., 905 F.2d 840, 854 (5th Cir.1990)(exercising discretion to address issues raised for the first time in a reply brief.) The Ninth Circuit has a specific rule that if the appellee raises an issue in its answering brief, the issue is joined and the court may consider it. Burlington Northern & Santa Fe Railway Company v. Vaughn, 509 F.3d 1085, 1093 (9th Cir. 2007). Applying this precedent, we exercise our discretion to address the merits of this issue.

Under 8 U.S.C. § 1326(a), the statutory maximum sentence for illegal reentry with no enhancements is two years in prison. If a defendant illegally reenters after a conviction for an aggravated felony and subsequent removal, the maximum sentence increases to twenty years. 8 U.S.C. § 1326(b)(2). In order for the higher sentence under 8 U.S.C. § 1326(b)(2) to apply, the defendant must have been deported following the conviction for an aggravated felony. Under Rojas-Luna, the fact of the deportation must be admitted or proven to a jury beyond a reasonable doubt.

In Rojas-Luna, the defendant pleaded guilty to illegal reentry after removal. Rojas-Luna, 522 F.3d at 503. In accordance with the factual basis described by the Government, Rojas-Luna admitted at rearraignment that he had been deported in 1988 and had reentered the United States on or about May 30, 2006. Id. The district court applied § 1326(b)(2) based on the fact that Rojas-Luna was convicted of aggravated assault in 2003 and removed in 2006 following his prison term. Id.

In its review for plain error, this court noted that, because Rojas-Luna was not convicted of an aggravated felony until 2003, his 1988 removal could not be used as the basis for an enhancement under "§ 1326(b)(2), because it was not subsequent to his conviction." Id. at 504 (internal quotation marks and citation omitted). The court further noted that the § 1326(b)(2) enhancement to Rojas-Luna's sentence could only be supported by his 2006 removal. Id. However, because Rojas-Luna did not admit to the 2006 removal and because it increased his sentence above the two-year statutory maximum sentence of § 1326(a), the court determined that the district court committed Apprendi¹ error by applying the 16-level enhancement under § 1326(b)(2). Id. at 504-06, 120 S.Ct. 2348. The court further determined that the error affected Rojas-Luna's substantial rights because it allowed the district court to sentence him above the two-year statutory maximum sentence of § 1326(a). Id. at 506, 120 S.Ct. 2348. The district court also determined that the error affected the fairness of the judicial proceedings because the record did not contain overwhelming evidence of the fact of Rojas-Luna's 2006 removal. Id. at 507. The court thus elected to exercise its discretion to correct the error by vacating and remanding the case for resentencing. Id.

In the instant case, the PSR indicated that Ramirez was deported in 1998, 2002, and 2005. Only the 2005 deportation was subsequent to Ramirez's 2003 New Jersey conviction for aggravated assault. Because the indictment and factual basis for Ramirez's plea did not specify the date of removal, Ramirez's guilty plea based on these documents admits only that he had been previously deported without specifying a time frame. However, the PSR incorporated ICE records provided to the probation office by the government and set forth the details of Ramirez's three prior removals in 1998, 2002, and 2005. The ICE records were provided to Ramirez by the government. In addition, Ramirez and his counsel affirmed specifically that they had read the PSR, reviewed it for legal and factual accuracy, and made no objections to it.

Reliance on a PSR to establish sentencing facts that increases the penalty beyond the statutory maximum is clear and obvious error. United States v. Rojas-Luna, 522 F.3d 502 (5th Cir.2008). However, reliance on a defendant's admission of facts that are contained in the PSR is permissible. United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006). In Rojas-Luna, this court reached the conclusion that there was plain error because "there is no evidence in the record that Rojas-Luna ever agreed to the accuracy of the PSR." In addition the panel noted that the only evidence of the defendant's prior removal was the unsupported statement in the PSR that he was removed in 2006. In this case, in contrast, there is evidence that Ramirez agreed to the accuracy of the PSR and the facts of Ramirez's prior removals in the PSR were based on ICE documentation of Ramirez's prior deportations, which documents were provided to the defendant. In order to prevail on this issue, Ramirez must establish: "(1) an error; (2) that is clear and obvious and (3) that affected his substantial rights. Olano, 507 U.S. at 732-34, 113 S.Ct. at 1776-78. If these conditions are met, this court can exercise its discretion to notice the forfeited error only if `the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.' Id. at 732, 113 S.Ct. at 1776 (internal quotation marks omitted)." United States v. Hernandez-Martinez, 485 F.3d 270, 273 (5th Cir.Tex.2007).

On these facts, we find that there was no plain error. First, there was no error that was clear or obvious. Alternatively, any error did not affect the fairness, integrity or public reputation of the judicial proceedings. United States v. Cotton, 535...