U.S. v. Ramos, 91-1702

Decision Date06 December 1991
Docket NumberNo. 91-1702,91-1702
Citation961 F.2d 1003
PartiesUNITED STATES of America, Appellee, v. Samuel G. RAMOS, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Richard M. Welsh, by Appointment of the Court, with whom Welsh & Mahoney, North Grafton, was on brief, for defendant, appellant.

Timothy Q. Feeley, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before CAMPBELL and TORRUELLA, Circuit Judges, and POLLAK, * Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Samuel G. Ramos entered a conditional plea of guilty pursuant to an indictment charging him with five counts of possession of a firearm by a person convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Defendant's plea was conditioned on his being allowed to appeal from two adverse district court rulings as follows: (1) that the defendant's knowledge that he violated federal law was not a necessary element of the offense charged, and (2) that the fact his prior state misdemeanor convictions did not result in the collateral loss of any civil rights did not prevent them from being predicate crimes for purposes of § 922(g)(1). We affirm his conviction.


On November 1, 1990, a grand jury returned a five-count indictment charging that Samuel G. Ramos (Ramos), having previously been convicted of a crime punishable by imprisonment for a term exceeding one year, did, on five different occasions, knowingly possess firearms which had been shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(g)(1).

Prior to trial, both the government and Ramos filed motions for rulings of law directed to the issues referred to above. In a comprehensive memorandum, the district court ruled on these motions, finding against the defendant on both issues. The government then entered into a written agreement with Ramos for disposition of the case. It was agreed that Ramos would enter a conditional plea of guilty to all five counts of the indictment, reserving the right to have the court of appeals review the district court's rulings on the motions. The district court approved the agreement.

Ramos also agreed to a statement of undisputed facts for purposes of appellate review. This established, among other things, that on September 12, 1989, Ramos was convicted in Massachusetts of assault and battery under Mass.Gen.Laws Ann. ch. 265, § 13A (West 1990) and violation of a protective order under Mass.Gen.Laws Ann. ch. 209A, § 7 (West 1991). Under Massachusetts law, both offenses were punishable by imprisonment for not more than two and one half years in a house of correction or by fine. Ramos was sentenced to ten days in the house of corrections for each of the offenses committed. Both sentences were to be served concurrently. Execution of the sentences was suspended, and six months of probation prescribed.


Ramos argues that the district court erred in ruling, under the agreed facts of this case, that the government need not prove that he knew he was violating 18 U.S.C. § 922(g)(1). We find no error in the district court's ruling. This court, and every court to have considered the issue, has held that the government need not prove the defendant knew he was violating the federal firearms law nor would "ignorance of the law" be a defense in such a prosecution. United States v. Smith, 940 F.2d 710, 713 (1st Cir.1991); see also, United States v. Currier, 621 F.2d 7, 10 (1st Cir.1980) (citing cases). The government need prove only the requisite predicate offense and that the defendant knowingly possessed firearms with prescribed interstate connections. United States v. Smith, 940 F.2d at 713.

Ramos seems to agree in his brief that knowledge of the law is not an element nor would ignorance be a defense, but suggests that ignorance was germane to a defense of "entrapment by estoppel." According to Ramos, in Smith we held that entrapment by estoppel has been held to apply when an official assures a defendant that certain conduct is legal, and the defendant reasonably relies on that advice and continues or initiates the conduct. Ramos' claim of entrapment by estoppel is based on the following premises:

1. Both predicate convictions under Massachusetts law (for assault and battery and the violation of the protective order) were misdemeanors under Massachusetts law, resulting in no loss of civil rights beyond those necessarily surrendered while serving the sentence itself.

2. At the time of these state convictions and thereafter, Ramos possessed a valid Massachusetts state license to carry firearms. This license to carry was never suspended nor was it revoked by the issuing authority after he was convicted of the two misdemeanors, nor did Massachusetts law provide for the revocation or suspension of his license to carry as a result of these convictions.

3. At the time he purchased and received the firearms upon which the federal charges are based, the state license to carry was still valid and in effect.

Ramos argues that the prior issuance and continuation in effect of the state license after his state misdemeanor convictions, constituted an assurance by state officials that his purchase of firearms would be legal under federal as well as state law. Ramos contends that in the circumstances his present conviction under 18 U.S.C. § 922(g)(1) amounted to an entrapment by estoppel, resulting in a violation of his due process rights.

In United States v. Smith, 940 F.2d at 714 we acknowledged that several circuits and the Supreme Court had recognized the concept of entrapment by estoppel under certain, relatively narrow circumstances. We need not, however, try to determine whether this case would fit within that concept. Ramos did not claim entrapment by estoppel prior to or in connection with, his conditional guilty plea under Fed.R.Crim.P. 11(a)(2). 2 A defendant is normally deemed to waive arguments that he does not present to the district court. United States v. Quesada-Bonilla, 952 F.2d 597, 603 (1st Cir.1991); Sandstrom v. Chemlawn Corp., 904 F.2d 83, 87 (1st Cir.1990). This is particularly so where, having pled guilty, he conditionally preserves for appellate review only the district court's adverse rulings on specified pretrial motions. Neither those motions nor the district court's Rulings and Memorandum of Decision nor the written plea agreement itself say anything about entrapment by estoppel. See, e.g., United States v. Simmons, 763 F.2d 529, 533 (2d Cir.1985) (The entry of a conditional guilty plea preserves only the specifically mentioned issue and waives all other nonjurisdictional claims). The argument Ramos presented, upon which the district court ruled, and which the plea agreement below preserved--that knowledge of violation of federal law was an element of the offense--raised a different legal question.

We add that it is uncertain that Ramos could have successfully reserved the entrapment by estoppel defense in connection with a conditional plea. Necessary to that defense would be a showing that the defendant reasonably relied on the state's advice that his conduct was legal. The issue of reasonable reliance normally requires factual development at trial. See United States v. Smith, 940 F.2d at 715. If so--especially if a jury determination were called for--entrapment by estoppel would be hard to resolve by a pretrial motion as contemplated under Fed.R.Crim.P. 11(a)(2). Compare United States v. Yater, 756 F.2d 1058, 1059 (5th Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 226 (1985) (in a case where the defendant entered a conditional plea of guilty to a charge of conspiracy to distribute cocaine, the defendant waived his right to appeal the entrapment issue by his conditional guilty plea); United States v. Sarmiento, 786 F.2d 665, 668 (5th Cir.1986) (Entrapment is a defense on the merits that is waived by a conditional guilty plea). While we need not rule definitively at this time on whether entrapment by estoppel can ever be resolved by pretrial motion, we are clear that where defendant entirely failed to raise the entrapment issue below at all, it is not available for appellate review here.


Next, Ramos argues that by the times alleged in Counts Two through Five of the indictment [April 4, 1990 through October 9, 1990], his civil rights had been restored and the Commonwealth of Massachusetts expressly allowed him the right to possess firearms. As a consequence, under an exemption stated at 18 U.S.C. § 921(a)(20), infra, Ramos claims that his state convictions for two misdemeanors should not be counted as predicate convictions for purposes of § 922(g). We disagree.

Ramos was charged with violating the following portion of 18 U.S.C. § 922:

(g) It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;

. . . . .

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In United States v. Rumney, 867 F.2d 714 (1st Cir.), cert. denied, 491 U.S. 908, 109 S.Ct. 3194, 105 L.Ed.2d 702 (1989), we held that a conviction under 18 U.S.C. § 1202(a)(1) (the predecessor statute to 18 U.S.C. § 922(a)(1)) 3 requires proof of three elements:

(1) that the accused is a convicted felon;

(2) who knowingly possessed a firearm;

(3) which was connected with interstate commerce.

Although Congress amended § 1202(a)(1), the elements of the offense remain the same. 4 Thus, in order to convict under § 922(g), the government must prove that defendant was previously convicted of a crime punishable by imprisonment for a term exceeding one year; i.e., that he is a convicted felon. Here, there is...

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