U.S.A. v. Ramsey
| Decision Date | 18 January 2001 |
| Docket Number | No. 00-2316,00-2316 |
| Parties | (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Joseph D. Ramsey, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois. No. 99-CR-40096-JPG--J. Phil Gilbert, Judge.
Before Posner, Coffey, and Kanne, Circuit Judges.
On February 3, 2000, Joseph Ramsey pleaded guilty to three counts of distribution of crack cocaine in violation of 21 U.S.C. sec. 841(a)(1). The Pre-Sentence Investigation Report ("PSR") recommended applying a two level sentencing enhancement because of Ramsey's use of a minor to commit the crimes, pursuant to United States Sentencing Guidelines (U.S.S.G.) section 3B1.4. Over Ramsey's objections, the district court applied the enhancement and sentenced Ramsey to 121 months imprisonment.1 On appeal, Ramsey objects to the application of the enhancement, arguing that he did not "use" his brother within the definition of section 3B1.4. He also contends that the court erred by failing to apply the rule of lenity. As the district court's application of the enhancement was proper, we affirm.
On November 12, 1999, a confidential source working for the Federal Public Housing Drug Task Force in Cairo, Illinois, notified Federal Bureau of Investigation ("FBI") agents in Carbondale, Illinois, that the defendant-appellant, nineteen year old Joseph Ramsey ("Ramsey"), was involved in the selling of crack cocaine. Through the confidential source, the FBI agents made arrangements for Ramsey to sell crack cocaine to an undercover agent in Cairo. On November 16, Ramsey traveled with the confidential source and his sixteen year old brother Duane Ramsey ("Duane") to Fort Defiance Park in Cairo where the sale was to take place. When they reached the park, Ramsey, the confidential source, and Duane all got out of the car, though only Ramsey and the confidential source approached the agent; Duane stayed behind. The undercover agent did not initially know who Duane was, as he had only expected Joseph and the confidential source.
During the transaction, Ramsey did all the talking while Duane remained in the background. After the undercover agent arranged to make the purchase with Ramsey, Ramsey called Duane over and told him to go ahead and show the undercover agent the crack cocaine. Duane pulled the crack cocaine out of his pocket and gave it to the undercover agent. The agent then gave the money to Duane. The agent then asked Ramsey if he could supply two more ounces of crack cocaine. Ramsey replied that he could, and agreed to be contacted through the confidential source.
On November 17, the parties met for the second time at Fort Defiance Park. Once again, Ramsey negotiated the final details of the transaction. He told the agent how much crack cocaine he and Duane had brought and agreed with the agent on a price. Ramsey then motioned to Duane to provide the crack cocaine to the agent, and the agent gave Duane the money.
Upon entering their car, Ramsey and Duane were taken into custody by law enforcement agents who had been providing surveillance. After waiving his constitutional rights, Ramsey admitted that he and his brother had sold crack cocaine to the undercover agent on November 16 and 17. Ramsey told the agents that, at the time he was contacted to sell the crack cocaine, he did not have the quantity that the individual wanted to buy. Ramsey then went to Duane and arranged for him to provide the rest of the crack cocaine needed for the sale. When the agents asked Ramsey why he was the one doing all the talking, he responded that Duane was simply too scared to do so. Ramsey also admitted that he had sold in excess of fifty grams of crack cocaine in the two years prior to his arrest, not counting the amount delivered to the undercover agent on November 16 and 17.
On February 3, 2000, Ramsey pleaded guilty to three counts of distribution of crack cocaine. A PSR was submitted on March 27, recommending application of the two level enhancement pursuant to U.S.S.G. section 3B1.4 based on Ramsey's use of his juvenile brother in the commission of two of the distributions. U.S. Sentencing Guidelines Manual sec. 3B1.4 (1998). On April 18, Ramsey filed objections to the recommendation. The probation office submitted an Addendum to the PSR maintaining the position that the enhancement should be applied.
On May 12, after reviewing the objections and hearing oral argument, the district court found that Ramsey did use his younger brother Duane within the meaning of section 3B1.4, noting that Ramsey directed, commanded, and encouraged his minor brother. The court thus overruled Defendant's objection and applied the two level enhancement. Ramsey appeals this application.
Joseph Ramsey contends that the district court committed error in increasing his total offense level by two points pursuant to U.S.S.G. section 3B1.4. Ramsey argues that he did not direct or command the actions of his juvenile brother. He thus contends that by applying the enhancement to the facts of this case, the district court misinterpreted the meaning of "use." On appeal Ramsey also argues that the language in section 3B1.4 is ambiguous, and that the rule of lenity, which requires ambiguity to be resolved in favor of the criminally accused, should be applied. The nature of the interaction between Ramsey and his juvenile brother is a question of fact, which we review for clear error. See United States v. Bailey, 227 F.3d 792, 801 (7th Cir. 2000); United States v. Vivit, 214 F.3d 908, 914 (7th Cir. 2000). We review the district court's interpretation of section 3B1.4 de novo. See Vivit, 214 F.3d at 914; United States v. Brack, 188 F.3d 748, 765 (7th Cir. 1999).
As a preliminary matter, we feel compelled to address the validity of section 3B1.4. Though Ramsey did not challenge the validity of the provision before this court,2 the Sixth Circuit has addressed the issue, and found the provision to be inapplicable to defendants who have not attained the age of twenty-one. Upon consideration, we respectfully disagree with the Sixth Circuit, and find that the Sentencing Commission did not abuse its discretion when it promulgated section 3B1.4 to include all defendants, regardless of age.
Congress created the Sentencing Commission in order to "establish sentencing policies and practices for the Federal criminal justice system." 28 U.S.C. sec. 991(b)(1) (1994); see also Mistretta v. United States, 488 U.S. 361, 367-70, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989). In addition to promulgating a set of sentencing guidelines, see sec. 994(a)(1), the Commission is expected to periodically review the guidelines, and revise them as necessary. See sec. 994(o). Any amendments to the guidelines are submitted to Congress and automatically take effect 180 days after submission, unless Congress modifies or disapproves an amendment. See sec. 994(p).
Ten years after the creation of the Commission, Congress passed the Violent Crime Control and Law Enforcement Act of 1994. Pub. L. No. 103-322, 1994 HR3355, sec. 140008, 108 Stat. 2033 (1994). This Act included a large list of directives to the Sentencing Commission commanding the amendment of existing guidelines, and promulgation of new ones. The precursor to section 3B1.4 directed the Sentencing Commission "to promulgate guidelines or amend existing guidelines to provide that a defendant twenty-one years of age or older who has been convicted of an offense shall receive an appropriate sentence enhancement if the defendant involved a minor in the commission of the offense." Id. sec. 140008 (emphasis added). The Commission undertook this task, but when it promulgated the new guideline, it eliminated the requirement that the defendant be at least twenty-one to be subject to the enhancement. Thus, section 3B1.4 reads as follows: "If the defendant used or attempted to use a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense, increase by two levels." U.S.S.G. sec. 3B1.4 (emphasis added). The resulting enhancement is thus applicable to defendants of all ages. See id.; see also Butler, 207 F.3d at 844 (Clay, J.).
The Supreme Court has held that "the Commission enjoys significant discretion in formulating guidelines." Mistretta v. United States, 488 U.S. at 377. In United States v. Hill, 48 F.3d 228 (7th Cir. 1995), we stated that when the Commission is "exercising this delegated power, the courts cannot interfere or second-guess unless the Commission oversteps constitutional bounds." Id. at 231. The Eighth Circuit took this language further, holding that, "[g]iven Congress's supervisory role, the Sentencing Commission's formulation of the Guidelines is not subject to judicial review unless the Commission oversteps constitutional bounds." United States v. Vincent, 167 F.3d 428, 431 (8th Cir. 1999) (citing Hill, 48 F.3d at 231), cert. denied, 528 U.S. 848 (1999). Since our decision in Hill, however, the Supreme Court has clarified the level of discretion accorded to the Sentencing Commission. United States v. LaBonte, 520 U.S. 751, 757, 117 S. Ct. 1673, 137 L. Ed. 2d 1001 (1997) .
The issue, then, is whether the Commission obeyed the specific directive of Congress. In the original statutory language, Congress directed that an enhancement...
To continue reading
Request your trial
-
State v. Flores
...used a minor in the commission of a crime, not whether the minor knew that he was being used to commit a crime." United States v. Ramsey, 237 F.3d 853, 861 (7th Cir.2001). The circuits differ as to the scope of conduct encompassed by the sentence enhancement but agree it applies only when t......
-
United States v. Dubin
...the "ordinary definition" of use, which is " ‘to put into action or service, avail oneself of, employ’ "); United States v. Ramsey , 237 F.3d 853, 859 (7th Cir. 2001) (quoting Black's Law Dictionary (6th ed. 1990)) (interpreting "use" according to its dictionary definition of " ‘to avail on......
-
U.S. v. Black
...In any event, Defendants did not raise this, argument and their failure to do so constitutes waiver. See, e.g., United States v. Ramsey, 237 F.3d 853, 862 (7th Cir.2001) ("The government argues that Ramsey's failure to raise this issue in the district court operates as a waiver, which precl......
-
U.S. v. Ceballos
...knowledge of the minor's age would undermine the legislative purpose behind the statute. See id. In addition, in United States v. Ramsey, 237 F.3d 853, 859-60 (7th Cir.2001), we addressed whether the fact that the minor had a substantial role in the offense precluded the application of § 3B......