United States v. Ramirez, 15-2570-cr
Decision Date | 25 January 2017 |
Docket Number | August Term, 2016,No. 15-2570-cr,15-2570-cr |
Parties | UNITED STATES of America, Appellee, v. Ferney Dario RAMIREZ, Defendant–Appellant, Freddy Arellano, Defendant. |
Court | U.S. Court of Appeals — Second Circuit |
Yelena Konanova (Sanford I. Weisburst, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, for Defendant–Appellant Ferney Dario Ramirez.
Amanda Houle , Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.
Before: Raggi, Chin, and Droney, Circuit Judges.
In May 2004, Defendant–Appellant Ferney Dario Ramirez pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court calculated Ramirez's Guidelines range as 360 months' to life imprisonment, and sentenced Ramirez to a term of 210 months' imprisonment. In 2015, Ramirez moved for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendments 782 and 788 of the Sentencing Guidelines lowered his applicable Guidelines range. The district court acknowledged that Amendment 782 reduced Ramirez's Guidelines range to 324 to 405 months' imprisonment but denied the motion because a 2011 Amendment to U.S.S.G. § 1B1.10(b) prohibited a sentence reduction where the defendant's initial sentence was below the minimum of the amended Guidelines range. On appeal, Ramirez argues that application of § 1B1.10(b) to prohibit a sentence reduction violates the Ex Post Facto Clause of the United States Constitution. We affirm the district court's order.
On September 16, 2003, Ramirez was charged in a one-count indictment with conspiracy to possess with intent to distribute five kilograms or more of cocaine. On May 6, 2004, Ramirez pleaded guilty pursuant to a plea agreement that stipulated to a Guidelines range of 151 to 188 months' imprisonment. Prior to sentencing, however, Ramirez made a motion to withdraw from his plea agreement in light of United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), so that he could argue for a sentence below the range stipulated in the plea agreement.1 The district court granted the motion and held a Fatico hearing on March 30, 2006, to resolve factual disputes between the parties regarding, inter alia , the amount of drugs involved and Ramirez's acceptance of responsibility, ultimately concluding that more than 150 kilograms of cocaine were involved in the offense and that Ramirez was not entitled to credit for acceptance of responsibility.
The district court proceeded to sentencing on May 25, 2006. Pursuant to U.S.S.G. § 2D1.1(c)(1), the district court calculated a base offense level of 38 based on the quantity of drugs involved in the offense. The district court applied a two-level enhancement under U.S.S.G. § 3B1.1 because Ramirez was an organizer, leader, or supervisor of the criminal activity, and another two-level enhancement under U.S.S.G. § 3C1.1 because Ramirez attempted to obstruct justice by influencing a witness. After refusing to grant various downward departures sought by Ramirez, the court calculated his adjusted offense level as 42. Given Ramirez's criminal history category of II, the district court determined that the applicable Guidelines range was 360 months' to life imprisonment.2
The district court noted that the situation was "highly unusual" because the parties had initially stipulated to a 151–to–188–month Guidelines range before Ramirez withdrew from the plea agreement. Joint App'x at 74–75. The court also acknowledged that, despite his withdrawal from the plea agreement, Ramirez's guilty plea "did in fact save the government and the public substantial resources." Id. at 75. After considering the 18 U.S.C. § 3553(a) factors, the district court imposed a below-Guidelines sentence of 210 months' imprisonment, followed by five years of supervised release.
Ramirez subsequently appealed his conviction and sentence, arguing that the district court erred in granting his motion to withdraw from the plea agreement and that his counsel was ineffective for advising him to withdraw. We affirmed the district court's judgment and dismissed Ramirez's ineffective->assistance claim without prejudice. See United States v. Ramirez , 267 Fed.Appx. 11, 11, 13 (2d Cir. 2008) (summary order). On May 6, 2011, the district court denied Ramirez's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Ramirez v. United States , No. 09–cv–4397 , ECF No. 9. We denied a Certificate of Appealability and dismissed Ramirez's subsequent appeal. Ramirez v. United States , No. 11–2843 (2d Cir. Feb. 22, 2012), ECF No. 37.
Under the 2002 Sentencing Guidelines in effect at the time of Ramirez's offense, as well as the 2005 Guidelines in effect when Ramirez was sentenced, district courts could generally reduce sentences in sentence-modification proceedings even where the initial sentence was below the low-end of the amended Guidelines range:
In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced, except that in no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.
U.S.S.G. § 1B1.10(b) (2002 ed.) ; accord id. § 1B1.10(b) (2005 ed.).3 In addition, the Application Notes to that section confirmed that "the sentencing court has the discretion to determine whether, and to what extent, to reduce a term of imprisonment under this section." Id. § 1B1.10(b) cmt. n.3 (2002 ed.); id. § 1B1.10(b) cmt. n.3 (2005 ed.).
In 2011, the Sentencing Commission adopted Amendment 759. That amendment prohibited district courts from imposing a reduced sentence that is below the minimum of the amended Guidelines range, unless the Government originally moved for a below-Guidelines sentence due to the defendant's substantial assistance to the authorities under U.S.S.G. § 5K1.1 :
Id. § 1B1.10(b)(2) (2011 ed.). The Amendment also added Application Note 6, which stated that "the court shall use the version of this policy statement that is in effect on the date on which the court reduces the defendant's term of imprisonment as provided by 18 U.S.C. § 3582(c)(2)." Id. § 1B1.10 cmt. n.6 (2011 ed.).
In 2014, the Sentencing Commission issued Amendment 782 to the Guidelines, which reduced offense levels for certain controlled substance offenses by two levels. In addition, the Sentencing Commission adopted Amendment 788, which stated that Amendment 782 should be applied retroactively.
On April 30, 2015, pursuant to 18 U.S.C. § 3582(c)(2), Ramirez made a pro se motion to the district court for a reduction of his sentence under Amendment 782. In response, the Government pointed out that Amendment 782 only lowered Ramirez's applicable Guidelines range to 324 to 405 months' imprisonment, and that Amendment 759 therefore rendered him ineligible for a sentence reduction because his original sentence of 210 months was below the minimum of the amended Guidelines range. Ramirez argued, however, that the district court "should utilize the language provided by the Sentencing Commission at the time of his original sentencing in 2006." Joint App'x at 102.
On July 23, 2015, the district court denied Ramirez's § 3582(c)(2) motion. The district court stated that Ramirez's amended Guidelines range after application of Amendment 782 was 324 to 405 months' imprisonment. The court then followed U.S.S.G. § 1B1.10(b)(2)(A)'s prohibition, ruling that "[b]ecause the Court imposed a sentence that is below the minimum Guideline of the amended Guidelines Range, and because the Court's initial variance was not based on the defendant's substantial assistance to the Government, the defendant is not eligible for a reduction in sentence." Id. at 111–12.
On appeal, Ramirez argues that application of Amendment 759 to prohibit his sentence-reduction request violated the Ex Post Facto Clause of the United States Constitution. We review de novo questions of law regarding a district court's decision to grant or deny an 18 U.S.C. § 3582(c)(2) motion. United States v. Johnson , 732 F.3d 109, 113 (2d Cir. 2013).4
Article I of the United States Constitution provides that neither Congress nor any state shall pass an "ex post facto Law." U.S. Const. art. I, § 9, cl. 3 ; id. art. I, § 10, cl. 1. The Ex Post Facto Clause applies, inter alia , to government actions that "make[ ] more burdensome the punishment for a crime, after its commission." Barna v. Travis , 239 F.3d 169, 171 (2d Cir. 2001) (internal quotation marks omitted); see also Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798) (...
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