United States v. Ramirez

• Docket Number: 21-2587
• Decision Date: 08 November 2022
• Citation: 52 F.4th 705
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher L. RAMIREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

52 F.4th 705

UNITED STATES of America, Plaintiff-Appellee,

v.Christopher L. RAMIREZ, Defendant-Appellant.

No. 21-2587

United States Court of Appeals, Seventh Circuit.

Argued September 23, 2022

Decided November 8, 2022

Jonathan H. Koenig, Rebecca Taibleson, Attorneys, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Adam Stevenson, Attorney, University of Wisconsin, Law School, Madison, WI, Defendant-Appellant.

Before Ripple, Rovner, and Brennan, Circuit Judges.

Ripple, Circuit Judge.

Christopher L. Ramirez pleaded guilty to possessing with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court sentenced him as a career offender under Sentencing Guideline § 4B1.1 because he had prior felony convictions in Wisconsin for possessing with intent to deliver tetrahydrocannabinol and for manufacturing or delivering cocaine. The court sentenced him to 120 months' imprisonment to be followed by eight years of supervised release.

Mr. Ramirez now appeals his sentence. He first asks us to reconsider our holding in United States v. Ruth , 966 F.3d 642, 651–54 (7th Cir. 2020). We held there that an offense need not involve a substance controlled by the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. , to qualify as a predicate "controlled substance offense" for purposes of the career of-fender enhancement under U.S.S.G. § 4B1.1(a). He further contends that the district court failed to consider adequately and meaningfully his primary mitigating sentencing argument.

We now affirm the judgment of the district court. Mr. Ramirez has not met his burden of demonstrating that Ruth should be overruled. We also are convinced that the district court comprehensively evaluated the record before it and appropriately sentenced Mr. Ramirez.

IBACKGROUND

In February 2021, confidential informants participated in two controlled purchases from Mr. Ramirez. The purchases tested positive for the presence of methamphetamine and fentanyl. On February 17, 2021, law enforcement officers executed a traffic stop on a vehicle operated by Mr. Ramirez. Inside the vehicle, the officers discovered a bag containing 184.79 grams of a substance that tested positive for methamphetamine and fentanyl. Investigators had observed Mr. Ramirez carrying the bag and placing it into the vehicle prior to the traffic stop.

Officers also executed a search warrant at the residence where a confidential informant had purchased methamphetamine from Mr. Ramirez. They found four firearms in a bedroom in which the owner of the residence, Mr. Ramirez's ex-girlfriend, said Mr. Ramirez resided. Another witness placed the firearms in Mr. Ramirez's possession. The witness explained that he had cleaned four firearms for Mr. Ramirez that matched the ones found during the search and that he had seen Mr. Ramirez place the firearms in the bedroom when they were returned to him on February 17, 2021. At that time, Mr. Ramirez had multiple prior felony convictions.

On March 16, 2021, a grand jury returned a four-count indictment charging Mr. Ramirez with possessing with intent to distribute fifty grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count One); being a felon in possession of firearms, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Two); and distributing methamphetamine and fentanyl, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts Three and Four). Mr. Ramirez entered into a plea agreement; according to its terms, he pleaded guilty to Count One of the indictment, and the Government agreed to move to dismiss Counts Two, Three, and Four at sentencing.

Prior to sentencing, the U.S. Probation Office filed a Presentence Investigation Report ("PSR"), which detailed Mr. Ramirez's "astounding origin and upbringing."¹ Mr. Ramirez did not have a relationship with either of his parents and was raised by his grandmother, who was involved actively in the drug trade and significantly lacked as a positive parental figure. He explained that life in his grandmother's custody was "hectic," "impoverished," and "in nearly constant survival mode."² He had "a first row seat to the world of drug dealing," "was not made to attend school," experienced violence from his cousin and uncle, and became involved with a street gang at age ten.³

The PSR described Mr. Ramirez's history of depression, dating back to his experiences during childhood. It also related a long history of self-medication through drugs and alcohol. He began drinking alcohol and smoking marijuana at around age ten and began using harder drugs, including cocaine, acid, phencyclidine, and methamphetamine, by age thirteen. According to the PSR, mental health professionals had seen Mr. Ramirez briefly during previous prison stays for situational depression and anxiety, but he now was speaking to jail staff about his history of depression and, for the first time, had been prescribed medications.

The PSR calculated a base offense level of 26 and added 2 levels for the possession of a dangerous weapon during the commission of the offense to reach an adjusted offense level of 28. The PSR then found that Mr. Ramirez met the criteria for a career offender enhancement under U.S.S.G. § 4B1.1(a) because (1) he was over eighteen years old at the time of the instant offense, (2) the instant offense qualified as a controlled substance offense under U.S.S.G. § 4B1.2(b), and (3) Mr. Ramirez had prior felony convictions for drug-related offenses under Wisconsin state law. The offense level was therefore increased to 34. After subtracting three levels for acceptance of responsibility, the PSR calculated a final total offense level of 31.

Taking into account Mr. Ramirez's previous criminal convictions, the PSR calculated a subtotal criminal history score of 11 and then increased the score two points because Mr. Ramirez had committed the instant offense while under the supervision of the Wisconsin Department of Corrections for previous convictions. Based on Mr. Ramirez's 13 criminal history points and his qualification as a career offender, the PSR determined that his criminal history category was VI.

The PSR explained that the maximum term of imprisonment on Count One, a Class B Felony, was forty years with a minimum mandatory term of five years. It also explained that, based upon a total offense level of 31 and a criminal history category of VI, the guideline imprisonment range was 188 to 235 months. Absent the career offender enhancement, the total offense level would have been 25, the criminal history category would have been VI, and the corresponding guideline range would have been 110 to 137 months' imprisonment.

At the sentencing hearing on August 16, 2021, the district court determined that, as set forth in the PSR, the total offense level was 31, the criminal history category was VI, and the resulting guideline range was between 188 and 235 months.⁴ At the hearing, Mr. Ramirez asked the district court to take "mercy" on him because of his upbringing.⁵ He stated that he would "try to better" himself and "try to be more of a productive member of society."⁶ He told the court that he had earned his high school equivalency diploma, sought mental health treatment, and been put on medication, which he had "never been open to doing in the past."⁷ He urged that he was "trying to take steps now" and "wanting to change."⁸

In determining Mr. Ramirez's sentence, the court first considered the "nature and circumstances of this offense," noting that it was a "very serious offense" because "[m]ethamphetamine laced with fentanyl is a very dangerous drug" that "spread[s] poison around a community" and the amounts were "significant."⁹ The court then explained that the "presence of firearms," specifically "semi-automatic handguns which are extremely dangerous," was "[a]nother aggravating factor."¹⁰ The court also noted that Mr. Ramirez's prior history of conviction for being a felon in possession of a firearm was significant. The court then noted that Mr. Ramirez was "a criminal history category VI by virtue of the career offender provision."¹¹ The court further noted that, even without the category VI designation, Mr. Ramirez's criminal history was "quite extensive" and seemed "uninterrupted from the time he was 16."¹² Indeed, noted the court, he had "almost no employment history."¹³

In its consideration of the ultimate aims of Mr. Ramirez's sentencing, the court considered his childhood and upbringing as a potential mitigating factor. Although the court noted that it often looked for "corroboration" of a defendant's account, it took Mr. Ramirez's description of his "horrendous childhood" at face value.¹⁴ The court stated:

If I were dealing with a young man, maybe 18, 19, 20 years old, I think the childhood—the unfortunate childhood the defendant had would carry more weight. But I'm not dealing with a young man, I'm dealing with a person who is 39 years of age. He's had multiple terms of probation with treatment ordered.

And the presentence report indicates he's been assessed for alcohol/drug treatment. He's up to his ... third or fourth [conviction for operating a vehicle while intoxicated] or something like that.

And he certainly has a lot of other probation offenses including some violent ones against women in particular that are of concern where he simply didn't take advantage of treatment opportunities that were there. And even his most recent prison stays involved treatment that he went through but says it was of little value.

I think treatment is, of course, very important, but treatment doesn't really work until someone is able, willing, and serious about stopping their use of drugs, and it appears the defendant has not had that attitude.

I'm impressed by the defendant's allocution. It sounds sincere, but the actions here speak very loud. And the history here is one of repeated violations of the law

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