United States v. Ramirez

• Decision Date: 27 February 2013
• Docket Number: 11–2417.,Nos. 11–2416,s. 11–2416
• Citation: 708 F.3d 295
• Parties: UNITED STATES of America, Appellee, v. Rigoberto RAMIREZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

708 F.3d 295

UNITED STATES of America, Appellee,

v.Rigoberto RAMIREZ, Defendant, Appellant.

Nos. 11–2416, 11–2417.

United States Court of Appeals,First Circuit.

Feb. 27, 2013.

Charles W. Rankin, with whom Audrey M. Grace and Rankin & Sultan were on brief, for appellant.

Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before TORRUELLA, HOWARD, and THOMPSON, Circuit Judges.

THOMPSON, Circuit Judge.

An investigation of gang-related drug trafficking by the Federal Bureau of Investigation (“FBI”) led to the arrest of Appellant Rigoberto Ramírez (“Ramírez”), a key supplier of crack cocaine in his community in Chelsea, Massachusetts. Ramírez was indicted, pled guilty to one count of conspiracy to distribute crack cocaine and two counts of distribution of crack cocaine, and received a thirteen-year sentence. Ramírez now challenges his sentence on both substantive and procedural grounds, claiming that his prior felony conviction did not warrant the career offender enhancement and that the district court erred in denying his request for resentencing and failing to adequately explain the reasons for his sentence. After careful review, we remand to the district court for further consideration.

BACKGROUND

The Drug Deals

Beginning sometime in 2009, an FBI gang task force began investigating drug trafficking by suspected gang members operating in Chelsea, Massachusetts. Ramírez and co-defendant Paul Rodriguez became targets of that investigation. Ramírez, although not a gang member himself, was considered a significant source of the crack cocaine business in Chelsea and used gang members to facilitate it. One of those gang members was Rodriguez, a member of “Neta,” a violent prison gang whose members retain their allegiance after release from prison.

There were two drug deals that eventually gave rise to the federal charges against Ramírez. The first happened in June 2009 when Ramírez and Rodriguez sold 1.5 grams of crack cocaine to a cooperating witness (“CW”) in a Walgreens parking lot. The second occurred the following month when Ramírez sold the same CW three more grams of crack cocaine. During that transaction, the CW handed the money used to purchase the drugs to a male passenger, named “BR,” who was under 18 years old and sitting in the front passenger seat. BR counted the money to confirm it was the correct amount for the drugs purchased.

The Indictment

In January 2010, a federal grand jury in Massachusetts indicted Ramírez on one count of conspiracy to distribute cocaine base, in violation of 21 U.S.C. § 846 (Count I), and two counts of distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (Counts II & IV). Count IV of the indictment added that Ramírez knowingly and intentionally employed, hired, used, persuaded, induced and enticed a person under 18 years of age to violate § 841(a)(1). Following the indictment, Ramírez was arrested and entered a plea of not guilty. A little over a year later, he pled guilty to all charges (more on the change-of-plea hearing later).

Sentencing

The pre-sentence report (“PSR”) first determined that the offense level was 15.¹ That offense level, combined with Ramírez's criminal history points (placing him in category V) would have set the Sentencing Guidelines (the “Guidelines”) range at 37 to 46 months. The PSR, however, further determined that Ramírez should receive an enhanced sentence as a career offender under § 4B1.1. The PSR based the career offender enhancement on two prior convictions that—according to the PSR—satisfied the definition of a “crime of violence” set forth in § 4B1.2(a): a 1993 Massachusetts conviction for manufacturing, distributing, or dispensing a Class A substance in a drug-free school zone, and a 1997 Florida conviction for burglary of a dwelling. Applying the enhancement, the PSR explained that § 4B1.1 directs the offense level be determined by the statutory maximum for the offenses of conviction and that the statutory maximum in this case was forty years (or twice the otherwise applicable statutory maximum penalty of twenty years) because Ramírez used a juvenile in violation of 21 U.S.C. § 861. The career offender total offense level of 34 was reduced by three levels under U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility resulting in a career offender total offense level of 31. According to the PSR, a total offense level of 31 and a career offender criminal history category of VI set the guidelines range at 188 to 235 months.²

When it came time for sentencing, Ramírez objected that burglary of a dwelling under Florida law did not qualify as a “crime of violence” under the career offender guideline to warrant a sentence enhancement. Ramírez further objected to any sentence enhancement under 21 U.S.C. § 861(b) for use of a person under 18 since he did not admit at the change-of-plea hearing that he knew BR was a minor. Lastly, Ramírez claimed the crime of violence provision's residual clause, § 4B1.2(a)(2), was unconstitutionally vague. ³

At sentencing, the district court concluded that Ramírez's Florida burglary of a dwelling conviction qualified as a “crime of violence” under § 4B1.1. The district court adopted the PSR's calculations, finding that Ramírez's career offender total offense level was 31 and his career offender criminal history category was VI, resulting in a Guidelines sentencing range of 188 to 235 months. The district court sentenced him to thirteen years imprisonment (or 156 months) and six years of supervised release.

Post–Sentencing

After sentencing, Ramírez moved to correct the judgment and for resentencing, arguing that because the district court credited Ramírez's statement at the change-of-plea hearing that he did not know BR was a minor, the enhancement under 21 U.S.C. § 861(b) should not apply. Without the enhancement, Ramírez argued, the correct guidelines sentencing range was 151 to 188 months, the term of supervised release should be reduced from six to three years, and resentencing was warranted. The court agreed in part with Ramírez. The district court reduced the term of supervised release to three years, but ruled that “there is no need for resentencing.” With the exception of the reduction in the term of supervised release, the sentence remained unchanged. Ramírez now appeals.

DISCUSSION

Prior Offense as a “Crime of Violence”

Ramírez first contends that burglary of a dwelling does not qualify as a “crime of violence” under § 4B1.2(a) of the Guidelines. We review de novo the classification of a prior offense as a crime of violence under the Guidelines. United States v. Small, 640 F.3d 425, 426 (1st Cir.2011).

To determine whether a defendant's prior crime qualifies as a crime of violence, we take a categorical approach. See, e.g., United States v. Jonas, 689 F.3d 83, 86 (1st Cir.2012) (citing Sykes v. United States, –––U.S. ––––, 131 S.Ct. 2267, 2272, 180 L.Ed.2d 60 (2011)). Our focus is on “the legal definition of the crime and not the defendant's particular conduct in committing the offense.” United States v. Davis, 676 F.3d 3, 7 (1st Cir.2012). We first identify the offense of conviction and look to see whether the statutory definition of that offense meets the requirements of the Guidelines' definition of a “crime of violence” under § 4B1.2(a). Davis, 676 F.3d at 8;United States v. Brown, 631 F.3d 573, 577 (1st Cir.2011).

The career offender designation applies to one who, being 18 or older at the time of the offense, commits a felony that is either a drug offense or a “crime of violence” and who has at least two other such convictions. U.S.S.G. § 4B1.1(a). A “crime of violence” is any offense “punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against a person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.§ 4B1.2(a). Thus, to qualify as a crime of violence, Ramírez's prior offense must contain an element of the threat or use of force, be one of the enumerated offenses, or fall within the residual clause. See id.; United States v. Giggey, 551 F.3d 27, 33 (1st Cir.2008) (en banc) (“Giggey I ”).

At the time of Ramírez's 1997 burglary of a dwelling conviction, Florida defined “burglary” as “entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.” Fla. Stat. § 810.02(1) (1997). “Dwelling” means “a building or conveyance of any kind ... whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.” Id.§ 810.011(3).

Because burglary of a dwelling under Florida law has no element related to the threat or use of physical force, it does not qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1). We thus turn to whether Ramírez's conviction can be classified as a crime of violence under the enumerated “burglary of a dwelling” offense under § 4B1.2(a)(2). While Ramírez does not dispute that he was convicted of burglarizing a dwelling, he argues that Florida's definition of burglary of a dwelling is broader than “generic burglary” as defined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Taylor interpreted the term “burglary” as it is used in the enumerated offense clause of the “violent felony” provision under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 495 U.S. at 597–99, 110 S.Ct. 2143.⁴ The definition of “burglary,” the Court said, should not be derived from the...