U.S. v. Ramirez, Docket No. 00-1664.
| Decision Date | 30 July 2002 |
| Docket Number | Docket No. 00-1564.,Docket No. 00-1664. |
| Citation | 297 F.3d 185 |
| Parties | UNITED STATES of America, Appellee, v. Juan RAMIREZ, also known as "Tony TKO", also known as "Scarface"; Luis Ramirez; Ernesto Martinez, also known as "Ene"; Justin Perez, also known as Gem; Haydee Huertas; LNU1-98CR0438-006, also known as Rafaelito; Albert Colon; Shirley Calcano; Freddy Santiago; Jose Colon, also known as Mike; Odiot Demetrius, also known as J. Boogie; Manuel Gonzalez, also known as Manny; Julio Castillo, also known as Tito, Defendants, LNU2-98CR0438-014, also known as John Doe #2, Defendant-Appellant. United States of America, Appellee, v. Juan Ramirez, aka "Tony TKO", aka "Scarface"; Luis Ramirez; Ernesto Martinez, aka "Ene"; Justin Perez, aka Gem; Haydee Huertas; LNU1-98CR0438-006, aka Rafaelito; Albert Colon; Shirley Calcano; Freddy Santiago; Jose Colon, aka Mike; Odiot Demetrius, aka Boogie; Julio Castillo, Defendants, Manuel Gonzalez, aka Manny, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Larry H. Krantz, Krantz & Berman, LLP, New York, NY, for Defendant-Appellant LNU2-98CR0438-014.
David W. Windley, Brooklyn, NY, for Defendant-Appellant Manuel Gonzalez.
Joshua G. Berman, Assistant United States Attorney, (Mary Jo White, United States Attorney for the Southern District of New York; Meir Feder, Daniel M. Gitner, and Gary Stein, Assistant United States Attorneys, on the briefs), New York, NY, for Appellee.
Before: WALKER, Chief Judge, OAKES, JACOBS, SOTOMAYOR, Circuit Judges, and LARIMER, Chief District Judge.*
Defendant-appellant LNU2-98CR0438-014 ("Doe #2") appeals from a September 14, 2000 order transferring him to adult status under the discretionary transfer provisions of 18 U.S.C. § 5032, entered by the United States District Court for the Southern District of New York (Robert L. Carter, District Judge). Defendant-appellant Manuel Gonzalez appeals from an August 8, 2000 judgment of conviction and sentence entered by the same court following his plea of guilty; he primarily argues that the district court erred in granting the government's motion to transfer him to adult status.
Oral arguments were heard in the appeals of Doe #2 and Gonzalez by two panels of this court on May 21, 2001, and September 28, 2001, respectively.1 Because the separate appeals involve common issues of law and fact, we have consolidated them for the purposes of disposition on appeal. We write only to address defendants' challenges to the district court's orders transferring them to adult status. A summary order issued simultaneously with this opinion disposes of additional issues on appeal raised by Gonzalez.
Because we conclude that the district court did not abuse its discretion in transferring the defendants from juvenile to adult status, the district court's orders and judgments are affirmed.
The defendants were charged under the Juvenile Delinquency Act ("JDA"), 18 U.S.C. § 5031 et seq.,2 for juvenile delinquency allegedly arising out of their involvement in the 165th Street Organization, a multi-state criminal enterprise based in the Bronx whose members, the indictment alleged, engaged in interstate narcotics trafficking and various violent acts. Defendant LNU2-98CR0438-014 is referred to herein as "Doe #2" to preserve his anonymity. Although defendant Manuel Gonzalez was originally indicted as "John Doe #1," we refer to him by name because he has already been convicted and sentenced as an adult. On appeal, both defendants argue that the district court erred in granting the government's motions to transfer them from juvenile to adult status under the discretionary transfer provisions of the JDA, 18 U.S.C. § 5032, which allow a juvenile to be prosecuted as an adult in federal court "in the interest of justice."
The juvenile information filed against defendant Doe #2 on March 15, 2000 charged him with ten acts of juvenile delinquency occurring between 1994 and 1999, including armed robbery, kidnapping, murder, racketeering, and the possession and distribution of powder and crack cocaine.
Doe #2 is specifically charged with participating in, inter alia, the March 15, 1995 armed robbery, kidnapping, and murder of Francis Soto, as well as a May 22, 1996 armed robbery. After the 1996 armed robbery, Doe #2 pled guilty in New York state court to a felony charge of criminal possession of a weapon for which he was sentenced to one to three years' imprisonment. Doe #2 was released on parole in 1997 and was later rearrested in 1999 for violating his parole.
On April 19, 2000, the government moved to prosecute Doe #2 as an adult pursuant to the discretionary transfer provisions of 18 U.S.C. § 5032. As required by the JDA, the United States Attorney for the Southern District of New York certified that (1) Doe #2 is a juvenile as defined by 18 U.S.C. § 5031; (2) the charged offenses include violent felonies; and (3) there is a substantial federal interest in this case. See 18 U.S.C. § 5032.
The district court held a hearing on August 10 and 14, 2000, to determine whether to transfer Doe #2 to adult status. Finding that rehabilitation was unlikely in Doe #2's case and that a transfer to adult status was warranted in the interest of justice, the district court ordered the transfer. United States v. Doe #3, 113 F.Supp.2d 604, 610 (S.D.N.Y.2000).3 It is from that order that Doe #2 appeals.
The juvenile information filed against Gonzalez on September 18, 1998 charged him with eleven acts of juvenile delinquency between 1994 and 1998, including charges of racketeering, murder, attempted murder, kidnapping, Hobbs Act robbery, and using and carrying firearms in relation to crimes of violence.
Specifically, the information charged Gonzalez with, inter alia, conspiracy; the March 15, 1995 armed robbery, kidnapping and murder of Francis Soto; a June 1995 assault and attempted murder in Reading, Pennsylvania; possession with intent to distribute cocaine, crack, and heroin; and illegal possession of firearms.
On September 18, 1998, the government moved to prosecute Gonzalez as an adult pursuant to the discretionary transfer provisions of 18 U.S.C. § 5032. As required by the JDA, the United States Attorney for the Southern District of New York certified that (1) Gonzalez is a juvenile as defined by 18 U.S.C. § 5031; (2) the charged offenses include violent felonies; and (3) there is a substantial federal interest in this case.
Thereafter, in a letter to the district court dated May 28, 1999, the government argued that transfer was required under the mandatory provision of 18 U.S.C. § 5032.4 The district court held a hearing on July 28, 1999 to determine whether transfer was appropriate under either the mandatory or discretionary provisions of § 5032. In an opinion dated August 23, 1999, Judge Carter denied the government's motion for a mandatory transfer, but granted the government's motion for a discretionary transfer on the grounds that rehabilitation was not likely in Gonzalez's case, and that such transfer was warranted in the interest of justice. United States v. Doe #1, 74 F.Supp.2d 310, 321 (S.D.N.Y. 1999).
Although Gonzalez filed a notice of appeal on August 23, 1999 to challenge the transfer order, the appeal was later withdrawn pursuant to a stipulation, dated November 23, 1999, signed by Gonzalez, his attorney, and the government. Also on November 23, following lengthy plea discussions, the district court accepted Gonzalez's plea of guilty to one count of racketeering in violation of 18 U.S.C. §§ 1961 and 1962; one count of committing violent crimes in aid of racketeering in violation of 18 U.S.C. § 1959(a)(5); and one count of using and carrying a firearm during a crime in violation of 18 U.S.C. § 924(c). The plea agreement stipulated that Gonzalez's sentence would be thirty-five years' imprisonment, and he expressly waived his right to appeal the stipulated sentence.
On February 28, 2000, Gonzalez filed a pro se motion to withdraw his guilty plea. However, on March 20, 2000, he withdrew his pro se motion and the district court took his guilty plea again. At the hearing, the district court expressly questioned Gonzalez about his waiver of the right to appeal his sentence in the following colloquy:
Thereafter, the district court entered a judgment of conviction on August 8, 2000, under which it sentenced Gonzalez to thirty-five years of imprisonment, three years of supervised release, and a mandatory special assessment of $150. On appeal, Gonzalez primarily argues that the district court abused its discretion in transferring him from juvenile to adult status.
As an initial matter, we note that, although an order transferring a defendant from juvenile to adult status is not a final judgment, "it is an order that is immediately appealable under the collateral order doctrine established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)." United States v. Doe, 49 F.3d 859, 865 (2d Cir.1995); see also United States v. Juvenile Male #1, 47 F.3d 68, 70-71 (2d Cir.1995). Thus, we have appellate jurisdiction over Doe #2's appeal from the district court's transfer order. Our jurisdiction over Gonzalez's appeal from the district court's final judgment of conviction is conferred by 28 U.S.C. § 1291. See United States v. Ferguson, 246 F.3d 129, 138 (2d Cir.2001).
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