United States v. Ramos
| Decision Date | 22 September 2017 |
| Docket Number | 16 C 5961 |
| Parties | UNITED STATES, v. ALEX RAMOS |
| Court | U.S. District Court — Northern District of Illinois |
This matter comes before the Court on Defendant Alex Ramos' ("Ramos") pro se petition to vacate, correct, or set aside his sentence pursuant to a successive 28 U.S.C. § 2255 motion filed on May 16, 2016. For the reasons set forth below, Ramos' motion is denied.
In the 1990s, while working as a police officer on Chicago's West Side, the Chicago Police Department's Internal Affairs Division ("IAD") and the Federal Bureau of Investigation ("FBI") investigated Ramos and several of his fellow officers for narcotics trafficking. The IAD and FBI accused Ramos of providing protection to drug dealers, regularly taking money and drugs from rival dealers during street stops or home searches, and, on two occasions, possessing a firearm when he acted as an escort for an undercover agent who held himself out to be a cocaine trafficker. United States v. Ramos, 1998 WL 155932, at *1 (N.D. Ill. Apr. 3, 1998).
On July 2, 1997, Ramos was charged in a superseding indictment as follows: racketeering, in violation of 18 U.S.C. §§ 1961, 1962 (Counts 1, 2); extortion, in violation of 18 U.S.C. § 1951 (Counts 18, 30); distributing cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2 (Counts 19, 31, 36); possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count 38); and using and carrying a firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c) (Counts 20, 32). On May 21, 1998, a jury found Ramos guilty of each charge, and on October 18, 2001, this Court sentenced Ramos to 592 months' imprisonment, as follows: concurrent 240-month terms of imprisonment on Counts 1, 2, 18, 19, 30, 31, and 36; followed by consecutive terms of 52 months on Count 38; 60 months on Count 20; and 240 months on count 32.
Ramos appealed, arguing various trial errors and contending that the Court erred in denying his motion for downward departure. United States v. Moore, 363 F.3d 631 (7th Cir. 2004), rehearing denied, Ramos v. United States, 543 U.S. 1094 (2005). On April 9, 2004, Ramos' conviction and sentence were affirmed. Id.
Ramos subsequently filed a § 2255 petition, arguing that his attorney was ineffective regarding trial and evidentiary matters, and that he was entitled to resentencing pursuant to United States v. Booker, 543 U.S. 220, 267 (2005). United States v. Ramos, 2006 WL 2710664, at *2 (N.D. Ill. Sept. 20, 2006). On September 20, 2006, we denied Ramos' first § 2255 motion. Id.
On May 16, 2016, Ramos filed an application for authorization to file this successive § 2255 motion, asserting his claim pursuant to the recent Supreme Court decision in Johnson v. United States, 135 S.Ct. 2551 (2015). On June 6, 2016, the Seventh Circuit granted Ramos' application and authorized this Court to consider his claim.
A successive § 2255 motion is permissible only if certified by the court of appeals to contain newly discoverable evidence, or, as is relevant to Ramos' motion, a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(1), (2). In Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court retroactively instituted its holding in Johnson, 135 S.Ct. at 2551, that the Armed Career Criminal Act's ("ACCA") residual clause is unconstitutionally vague. On May 16, 2016, acting pro se and pursuant to the Johnson holding, Ramos timely filed his successive § 2255 motion. 28 U.S.C. § 2255(f)(3).
A document filed pro se must be "'liberally construed,' and 'held to less stringent standards than formal pleadings drafted by lawyers.'" Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "Pleadings must be construed so as to do justice." Fed. R. Civ. P. 8(e).
Here, Ramos challenges his § 924(c) convictions under Johnson. Federal law forbids convicted felons and drugs users to "ship, possess, and receive firearms."Johnson, 135 S.Ct. at 2555; 18 U.S.C. § 922(g). If a violator of this ban has three or more earlier convictions for a serious drug offense or a violent felony, the ACCA increases his prison term to a minimum of 15 years and a maximum of life. Id.; 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as a felony that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). (emphasis added). The Johnson court held that the emphasized portion (the "residual clause") is unconstitutionally vague and the imposition of increased sentences under the clause violates due process. Johnson, 135 S.Ct. at 2557, 2563.
Six months after the Johnson ruling, the Seventh Circuit extended the Johnson ruling to include convictions for "crimes of violence." The court found that the statutory definition of "crimes of violence," 18 U.S.C.A §16(b), is "materially indistinguishable from the ACCA's residual clause" and "unconstitutionally vague in light of Johnson." U.S. v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015). Therefore, any increased sentence imposed for the carrying of a firearm in relation to a crime of violence runs afoul of Johnson and is no longer viable as grounds for enhanced sentencing.
However, in Johnson, the Supreme Court expressly noted that its decision "does not call into question application of the Act to the four enumerated offenses, orthe remainder of the Act's definition of violent felony." Johnson, 135 S.Ct. at 2563. Accordingly, a felony offense "that has as an element the use, attempted use, or threatened use of physical force against the person of another" is still a constitutionally valid predicate offense for an increased sentence under 18 U.S.C. § 924. Neither does Johnson affect the ACCA's definition of "serious drug offense." See 18 U.S.C. § 924(e)(2)(A). A conviction for carrying a firearm in relation to a drug-related offense, then, remains viable.
Ramos' relevant contentions regarding his convictions are as follows. Ramos alleges that he was sentenced to two separate twenty-year terms in connection with carrying or using a firearm in relation to an attempted extortion and racketeering. Ramos argues that he is serving forty extra years of imprisonment based on § 924(c) crimes predicated on these two crimes of violence, extortion and racketeering. Finally, Ramos contends that it was not a jury who found him guilty of the § 924(c) crimes, but rather a judge who supplied facts to impose the additional forty years.
In support, Ramos points to his Judgement and Commitment Order, which states that his 18 U.S.C. § 924(c) counts are "for possession of a firearm in relation to a crime of violence." Citing United States v. Eskridge, 445 F.3d 930 (7th Cir. 2006) and United States v. Zepeda, 329 Fed.Appx. 647 (7th Cir. 2009), Ramos alleges that because there is supposedly no record of his oral sentencing, the crime listed on hisJudgment and Commitment Order controls, and his sentence must be corrected according to Johnson's proscriptions regarding crimes of violence.
The United States concedes that Ramos' Judgment and Commitment Order indicates that his § 924(c) counts are for possession of a firearm in relation to a crime of violence. However, the United States contends that this is the result of a clerical error and that Ramos' 924(c) conviction was indeed for its relation to drug trafficking. If the United States' assertion is correct, then Ramos' conviction would indeed fall beyond the scope of Johnson and reconsideration of his sentence under that case would be improper.
"If an inconsistency exists between an oral and the later written sentence, the sentence pronounced from the bench controls." U.S. v. Becker, 36 F.3d 708, 710 (7th Cir. 1994). "When interpreting a sentencing order, if the hearing transcript is unambiguous we need not resort to extrinsic evidence such as the written sentencing order, the defendant's understanding of the sentence or the judge's intent." Id. at 711. If a latent ambiguity in an oral sentence does exist - a latent ambiguity only emerges contextually, when the circumstances surrounding the text are considered - then further inquiry is required. U.S. v. Cephus, 684 F.3d 703, 710 (7th Cir. 2012). Such an ambiguity between the court's oral sentence and written sentencing order mandates examination of the record as a whole to determine the court's intention in imposing sentence. U.S. v. Gibas, 328 F.2d 833, 834 (7th Cir. 1964).
Indeed, the record of Ramos' sentencing hearing is illuminating, the transcript from which includes numerous in-court discussions about the hefty sentencing consequences of the 924(c) convictions, or "gun charges," as the Court and present counsel frequently termed them. In a telling monologue regarding the fairness of the charges initially levied against Ramos, the Assistant United States Attorney bluntly states that Ramos' 924(c) charge arose because of "only the drug escort." The prosecutor differentiates this charge from another defendant in the case who was not charged with a 924(c) violation by remarking that that individual's conduct consisted only of "extortion." This comment comes in the middle of a lengthy dispute between the parties focused almost exclusively on Ramos' 924(c) charges, and at no point is any confusion or ambiguity expressed over the specifics of the charge.
Towards the end of the parties' argument about the 924(c) charge, the prosecutor points out that the other defendant not charged with a 924...
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