11-2934-cr
United States of America v. Edgardo Ramirez

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

    At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 20th day of November, two thousand twelve.

Present: JOHN M. WALKER, JR.,
         ROBERT A. KATZMANN,
         PETER W. HALL,
                     Circuit Judges.
____________________________________________________________

UNITED STATES OF AMERICA,

                           Appellee,

                           -v-                          No. 11-2934-cr

EDGARDO RAMIREZ,

                     Defendant-Appellant.
____________________________________________________________

For Appellee:                     Abigail S. Kurland, Katherine Polk Failla, Assistant United
                                  States Attorneys, for Preet Bharara, United States Attorney for
                                  the Southern District of New York

For Defendant-Appellant:          Theodore S. Green, Green & Willstatter, White Plains, N.Y.


        Appeal from the United States District Court for the Southern District of New York

(Karas, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       Defendant Edgardo Ramirez (“Ramirez”) appeals from a July 11, 2011, judgment of the

United States District Court for the Southern District of New York (Karas, J.), convicting

Ramirez of one count of possessing a firearm as a convicted felon in violation of 18 U.S.C.

§ 922(g)(1), and sentencing him principally to a within-Guidelines sentence of seventy-seven

months’ imprisonment. We assume the parties’ familiarity with the remaining facts and

procedural history of the case.

       On appeal, Ramirez challenges only the substantive reasonableness of his sentence. We

review the substantive reasonableness of a sentence for abuse of discretion, Gall v. United

States, 552 U.S. 38, 51 (2007), “tak[ing] into account the totality of the circumstances, giving

due deference to the sentencing judge’s exercise of discretion, and bearing in mind the

institutional advantages of district courts,” United States v. Cavera, 550 F.3d 180, 190 (2d Cir.

2008) (en banc). “[W]e will not substitute our own judgment for the district court’s on the

question of what is sufficient to meet the § 3553(a) considerations in any particular case.” Id. at

189. Accordingly, we will “set aside a district court’s substantive determination only in

exceptional cases where the trial court’s decision ‘cannot be located within the range of

permissible decisions.’” Id. (emphasis omitted) (quoting United States v. Rigas, 490 F.3d 208,

238 (2d Cir. 2007)). Absent procedural error, if a sentence is reasonable, “we will not second

guess the weight (or lack thereof) that the judge accorded to a given factor or to a specific

argument made pursuant to that factor.” United States v. Pope, 554 F.3d 240, 247 (2d Cir. 2009)

(internal quotation marks omitted). Finally, while there is no presumption that a within-


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Guidelines sentence is substantively reasonable, in “the overwhelming majority of cases, a

Guidelines sentence will fall comfortably within the broad range of sentences that would be

reasonable in the particular circumstances.” United States v. Fernandez, 443 F.3d 19, 27 (2d

Cir. 2006).

       Ramirez contends that his sentence is substantively unreasonable because the district

court placed too much weight on his offense conduct (i.e., that he fired a gun in public in the

middle of the day) and on his criminal history. Both of these arguments lack merit. The district

court was appropriately concerned by Ramirez’s offense conduct. Ramirez’s brief attempts to

minimize the gravity of his offense by suggesting that the facts surrounding it are “murky.”

Appellant’s Br. at 10. However, on multiple occasions Ramirez accepted the description of the

offense conduct on which the district court relied at sentencing. For instance, at Ramirez’s plea

hearing, after the government summarized the proof it would introduce if Ramirez’s case went to

trial, Ramirez confirmed that he still wished to plead guilty. Additionally, Ramirez did not

object to the description of the offense conduct in the PSR or take issue with the accuracy of the

government description of his conduct at the sentencing hearing.

       The district court also correctly considered Ramirez’s criminal history. Ramirez’s

conviction in this case was his third felony conviction and his sixteenth overall conviction.

Ramirez emphasizes that his prior felony convictions date back to 1993 and 2005, but it is

undisputed that Ramirez has had a lengthy criminal career, including numerous violent offenses.

There is no reason to conclude that the district court overstated the risk of Ramirez committing

future crimes.




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       Finally, we note that when sentencing Ramirez, the district court expressly took into

account his serious medical condition, difficult childhood, and the letters submitted by friends

and family on his behalf. These considerations likely played a role in the district court’s

decision to sentence Ramirez at the bottom end of the Guidelines range. We will not disturb this

determination.

       We have considered defendant’s remaining arguments and find them to be without merit.

Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




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