U.S. v. Ramirez

• Decision Date: 18 September 2003
• Docket Number: Docket No. 02-1768.
• Citation: 344 F.3d 247
• Parties: UNITED STATES of America, Appellant, v. Miguel A. RAMIREZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

344 F.3d 247

UNITED STATES of America, Appellant, v. Miguel A. RAMIREZ, Defendant-Appellee.

Docket No. 02-1768.

United States Court of Appeals, Second Circuit.

Argued: July 18, 2003.

Decided: September 18, 2003.

David Berardinelli, Assistant United States Attorney, Southern District of New York, New York, New York (James B. Comey, United States Attorney; Gary Stein, Assistant United States Attorney, on the brief), for Appellant.

Roger L. Stavis, Stavis & Kornfeld, L.L.P., New York, New York (Laura J. Lefkowitz, on the brief), for Defendant-Appellee.

Before: CALABRESI, RAGGI, and WESLEY, Circuit Judges.

RAGGI, Circuit Judge.

This appeal again presents us with the question whether a state felony conviction for simple drug possession constitutes an aggravated felony under U.S.S.G. § 2L1.2(b)(1), the guideline that identifies specific offense characteristic enhancements for violations of 8 U.S.C. § 1326 (unlawful reentry after deportation). When, in United States v. Pornes-Garcia, 171 F.3d 142, 145 (2d Cir.1999), we answered this question in the affirmative, we were reviewing the pre-2001 version of U.S.S.G. § 2L1.2(b)(1). Today, we reach the same conclusion in construing the November 2001 amendment to that guideline.

Appellant, the United States of America, appeals from that part of the November 25, 2002 judgment of conviction of the United States District Court for the Southern District of New York (Deborah A. Batts, Judge) that sentenced Defendant-Appellee Miguel A. Ramirez to twenty-four months' incarceration and two-years' supervised release on his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326. The United States submits that the district court erred in its calculation of Ramirez's guideline range by refusing to treat his two prior New York State felony convictions for drug possession as "aggravated felon[ies]" warranting an eight-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C) and instead, applying the four-level enhancement provided in § 2L1.2(b)(1)(D) for defendants deported after conviction for "any other felony." Because we conclude that a felony drug possession conviction qualifies as an "aggravated felony" under § 2L1.2(b)(1)(C), just as it did under the pre-amendment version of the guideline, we vacate Ramirez's sentence and remand the case for resentencing. We further grant the United States's unopposed request to remand for correction of the written judgment to conform with the court's oral sentence of a three-year term of supervised release.

I. Background

A. Ramirez's 2000 Deportation from the United States after New York State Convictions for Drug Possession

On March 1, 1999, Miguel A. Ramirez, a Dominican national unlawfully in the United States, was arrested by New York City police officers for possession of cocaine with intent to distribute. That same month, on March 16, 1999, Ramirez was again arrested after selling cocaine to an undercover detective. Ramirez resolved both cases by pleading guilty to two felony counts of simple cocaine possession in the third degree, see N.Y. Penal Law § 220.16(12) (McKinney 1998), for which crimes he received concurrent sentences of one-to-three years' imprisonment. Paroled on March 21, 2000, into the custody of the Immigration and Naturalization Service, Ramirez was deported to the Dominican Republic on August 1, 2000.

B. Ramirez's Guilty Plea for Unlawful Reentry into the United States

On March 20, 2001, approximately eight months after deportation, Ramirez reentered the United States without the permission of the Attorney General, in violation of 8 U.S.C. § 1326(a). Almost immediately, on March 23, 2001, Ramirez was arrested by New York City police for again selling drugs.¹ Federal authorities were alerted to his presence in the United States and, on September 10, 2001, a grand jury sitting in the Southern District of New York returned a one-count indictment charging Ramirez with illegal reentry after deportation. See 8 U.S.C. § 1326(a). On April 2, 2002, after a petit jury had been empanelled, Ramirez pleaded guilty to the single charge against him.

C. Ramirez's Sentencing

After reviewing Ramirez's Pre-Sentence Report, as well as various submissions from the parties discussing which of the U.S.S.G. § 2L1.2(b)(1) enhancements applied in Ramirez's case, the district court, on September 6, 2002, issued a memorandum and order noticing its intent to apply the four-level enhancement provided in § 2L1.2(b)(1)(D) for prior felony convictions that do not constitute aggravated felonies. See United States v. Ramirez, 01-CR-0888, 2002 WL 31016657 (S.D.N.Y. Sept.9, 2002).

Implicitly acknowledging this court's 1999 holding that felony convictions for simple drug possession qualified as "aggravated felon[ies]" under § 2L1.2(b)(1) (1997), see United States v. Pornes-Garcia, 171 F.3d at 145, the district court questioned the continued applicability of that decision after amendment of the guideline in 2001. Prior to amendment, § 2L1.2(b)(1) had provided for only two possible enhancements — a sixteen-level increase if a defendant had been deported after conviction for an aggravated felony, see U.S.S.G. § 2L1.2(b)(1)(A) (1997), and a four-level increase if deportation had followed conviction for any other felony, see id. § 2L1.2(b)(1)(B). After amendment, however, a prior "aggravated felony" conviction warrants only an eight-level enhancement, see U.S.S.G. § 2L1.2(b)(1)(C) (2001), unless it falls within certain specified categories. In the case of prior drug convictions, a sixteen-level enhancement applies for "drug trafficking offense[s]" resulting in sentences exceeding thirteen months. Id. § 2L1.2(b)(1)(A). If a "drug trafficking offense" results in a sentence of thirteen months or less, a twelve-level enhancement applies. Id. § 2L1.2(b)(1)(B).

The problem, in the district court's view, was that amended § 2L1.2(b)(1), like its predecessor, defines "aggravated felony" by reference to 8 U.S.C. § 1101(a)(43), see U.S.S.G. § 2L1.2 Application Note 2, which, in turn, incorporates the definition of "drug trafficking crime" employed in 18 U.S.C. § 924(c), see 8 U.S.C. § 1101(a)(43)(B). Perceiving no meaningful distinction between a "drug trafficking crime" and a "drug trafficking offense," the district court concluded that continued application of the statutory definition of aggravated felony to the amended guideline would "elevate[] all drug felonies to drug trafficking felonies," thereby defeating the amendment's effort to draw distinctions between those drug crimes sufficiently serious to warrant the twelve— and sixteen-level enhancements called for by U.S.S.G. § 2L1.2(b)(1)(A) & (B) and those meriting the lesser eight-level increase provided in § 2L1.2(b)(1)(C). United States v. Ramirez, 2002 WL 31016657, at *2-3.

Concluding that it could not treat Ramirez's felony possession convictions as "aggravated felon[ies]" for purposes of § 2L1.2(b)(1)(C) without simultaneously treating them as "drug trafficking offense[s]" under § 2L1.2(b)(1)(A) — a result it deemed at odds with the "purpose [and] intent" of the 2001 amendments — the district court declined to apply § 2L1.2(b)(1)(C) to Ramirez and, instead, calculated his guidelines with reference to the four-level enhancement provided in § 2L1.2(b)(1)(D) for "any other felony." Id. at *3.

The United States objected to the court's conclusion that every "aggravated felony" under § 2L1.2(b)(1)(C) was necessarily a "drug trafficking offense" under § 2L1.2(b)(1)(A) or (b)(1)(B) and urged application of the eight-level enhancement. Unpersuaded, the district court determined that Ramirez's total offense level was 10 and that, with a Criminal History Category of V, his sentencing range was 21 to 27 months. The court sentenced Ramirez to the middle of this range, imposing a 24-month term of incarceration.

II. Discussion

A. The Appropriate § 2L1.2(b)(1) Enhancement

1. Standard of Review

The question which guideline enhancement properly applies to Ramirez's case presents no disputed issues of fact but only a disagreement about the proper interpretation and application of § 2L1.2(b)(1). We review de novo the district court's ruling on this issue. See United States v. Rivers, 329 F.3d 119, 120 (2d Cir.2003).

2. Section 2L1.2(b)(1) Enhancements Before the November 2001 Amendments

Prior to amendment in November 2001, § 2L1.2(b)(1)(A) provided that in calculating the guideline range of a defendant convicted for unlawful reentry after deportation, the base offense level of eight should be increased by sixteen "[i]f the defendant previously was deported after a... conviction ... for an aggravated felony." Construing this provision in both United States v. Polanco, 29 F.3d 35, 37-38 (2d Cir.1994) and United States v. Pornes-Garcia, 171 F.3d at 145-46, this court concluded that it applied to any felony conviction, whether under federal or state law, for conduct proscribed by the Controlled Substances Act, 21 U.S.C. § 801 et seq.

The court explained in Pornes-Garcia, 171 F.3d at 145, that although U.S.S.G. § 2L1.2 did not specifically define the term "aggravated felony," the guideline's Application Note 1 referenced the definition in 8 U.S.C. § 1101(a)(43). That statute defines "aggravated felony" to include any "illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)." 8 U.S.C. § 1101(a)(43)(B). It further states that the "term [`aggravated felony'] applies to an offense described in [§ 1101(a)(43)] whether in violation of Federal or State law." Id. § 1101(a)(43). Section 924(c) of Title 18, in turn, defines "drug trafficking crime" to include "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.)." 18 U.S.C. § 924(c)(2).

Based upon this analysis, the court concluded that a New York State felony conviction for attempted drug possession...