                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-2-2003

USA v. Ramos
Precedential or Non-Precedential: Non-Precedential

Docket 02-1792




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"USA v. Ramos" (2003). 2003 Decisions. Paper 899.
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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ___________


                                     No. 02-1792
                                     ___________


                          UNITED STATES OF AMERICA


                                           v.


                               JOSE MIGUEL RAMOS
                                                Appellant.
                                     ___________


                    On Appeal from the United States District Court
                             for the District of New Jersey
                               (Crim. No. 01-cr-00599)
                    District Judge: The Honorable John C. Lifland
                                     ___________


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 12, 2002


 Before: FUENTES and STAPLETON, Circuit Judges and O’KELLEY*, District Judge


                           (Opinion Filed: January 2, 2003)
                             ________________________




* The Honorable William C. O’Kelley, United States District Judge for the Northern
District of Georgia, sitting by designation.
                               ________________________

                                OPINION OF THE COURT
                               ________________________

FUENTES, Circuit Judge:

       On September 21, 2001, Ramos pled guilty to a one-count information charging him

with violating 21 U.S.C. § 952(a) by importing over 100 grams of heroin from Colombia into

the United States. His appeal is limited to the sentence imposed on him by the District Court.

He argues that the District Court erred in declining to exercise its discretion to grant him a

downward departure under U.S.G.G. § 4A1.3. We will dismiss the appeal for lack of

jurisdiction.

                                              I.

       On April 25, 2001, Appellant Jose Ramos arrived at Newark International Airport on

a flight from Bogota, Colombia. At a routine customs examination, Ramos appeared

nervous and was, therefore, asked to consent to an x-ray. The consensual x-ray exam

revealed that foreign objects were in his digestive tract. Ramos was transported to a medical

facility for observation where he passed 43 pellets of a substance which tested positive for

heroin. A Drug Enforcement Agency lab report indicated that the total net weight of the

heroin recovered from Ram os’ body was 947.3 grams with a 93 % purity. Thereafter Ramos

pled guilty to a one-count information charging him with importing drugs.

       In the Pre-sentence Investigation Report, the Probation Office assigned Ramos a total

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offense level of 27 and a criminal history category of V based upon a total of 10 criminal

history points, which placed him in a sentencing range of 120-150 months. At sentencing

on March 7, 2002, the Court found that a two-level downward adjustment was warranted due

to Ram os’ minor role in the drug importation offense with which he had been charged. With

an adjusted total offense level of 25 and a criminal history of V, the applicable guideline

range was 100 to 125 months.

       Ramos moved for a downward departure pursuant to U.S.S.G. § 4A1.3 1 on the basis

that his criminal history score over-represented (1) the seriousness of his criminal past, which

consisted of predominantly drug-possession convictions stemming from his drug addiction,

and (2) the likelihood that he would commit other crimes. Ramos requested imposition of

a 60 month sentence so that he would be eligible for participation in a boot camp program.

The Government opposed Ramos’ request for a downward departure, asserting that his

continued non-compliance with the law and the terms and conditions of probation showed

that Ramos had a serious criminal history and would likely commit future crimes. After

hearing arguments, the District Court declined to depart downward. The Court sentenced



       1
           Section 4A1.3 provides:

                 If reliable information indicates that the criminal history category
                 does not adequately reflect the seriousness of the defendant's past
                 criminal conduct or the likelihood that the defendant will commit
                 other crimes, the court may consider imposing a sentence departing
                 from the otherwise applicable guideline range.

U.S.S.G. § 4A1.3

                                                 -3-
Ramos to imprisonment for a term of 100 months, the lowest term under the applicable

guidelines range, and supervised release for four years. Ramos filed a timely Notice of

Appeal.

       The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. § 3231.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s

decisions concerning departures from the Sentencing Guidelines for an abuse of discretion.

See, e.g., United States v. Abuhouran, 161 F.3d 206, 209 (3d Cir. 1998) (citing United States

v. Sally, 116 F.3d 76, 78 (3d Cir. 1997)). However, “[w]e lack jurisdiction to review a

refusal to depart downward when the district court, knowing it may do so, nonetheless

determines that departure is not warranted.” United States v. McQuilkin, 97 F.3d 723, 729

(3d Cir. 1989) (citing United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989)).

                                             II.

       Ramos requested a downward departure on the basis that a criminal history category

of V over-represented the seriousness of his prior conduct and his risk of recidivism because

all but one of his convictions were for possession of narcotics due to his addiction and the

single non-drug related conviction was for criminal trespass, for which he served one day.

Ramos pointed out that he had served a combined total time of less than eight and a half

months for committing minor offenses but was being placed in the same criminal history

category as hard-core criminals who have committed several violent offenses, such as armed

robbery or aggravated assault, and who would have served a substantially longer time in


                                             -4-
prison for those offenses.

       Ramos asserts that the District Court erroneously disregarded evidence of

accomplishments suggesting that his risk of recidivism has been lowered, such as his

achievement of sobriety, completion of his GED, and enrollment in job skills courses.

Ramos also asserts on appeal that the District Court did not consider a wide range of factors

in assessing whether his criminal history score overstated the seriousness of his past conduct.

       Our review of the record indicates that the District Court recognized its discretion to

depart downward. The Court explained:

                 Departures under 4A 1.3 such as those that are requested here
                 are justified in certain cases. Those cases include, or those cases
                 are defined by the fact that there has been a significant over
                 representation of the seriousness of his past conduct and future
                 threat to society. I am quoting from the United States versus
                 Beckham decision of 968 F.2d 47. Page 55.2

App. at 26.

       The record also shows that the District Court considered multiple factors in assessing

whether Ramos’ criminal history overstated his past criminal conduct and the risk of

recidivism. After defense counsel presented Ramos’ arguments in support of a downward

departure, the Court clarified its understanding of Ramos’ position by asking:

                 The argument, as I understand it, is that Mr. Ramos was a heroin
                 addict for many years, that he – that part of his criminal history
                 and four out of the ten [criminal history] points [were] related to
                 selling drugs in order to earn money so that he could support his


       2
           United States v. Beckham, 968 F.2d 47, 55 (D.C. Cir. 1992).

                                                 -5-
              habit.

              [A] lesser number of points in the criminal history are
              attributable to possession for personal use. Am I accurately
              summarizing your position . . . ?

App. at 25-26. Defense counsel responded: “Yes, your Honor.” App. at 26. The District

Court then explained why it decided to deny the requested downward departure:

              It appears to me that the history of these offenses which
              constitute Mr. Ramos’ criminal history extend over a substantial
              period of time, a fairly steady recidivism starting at age 29, and
              continuing through age about 32, and the history and then
              including this offense, where I believe he was about 33 at the
              time of his arrest. So insofar as Mr. Ramos’ future threat to
              society, I, and as reflected in his criminal history, it does appear
              to me that there will be a continuing threat, based upon that
              history.

              Mr. Ramos was not an immature individual at the time. I
              indicated his age already, which certainly is an age of maturity.

              As I have indicated, there has been a steady progression of
              offenses throughout the period of time about four years in M r.
              Ram os’ history. All of that history is relatively recent.

              So for those reasons I must conclude that criminal history of ten
              does not significantly over represent the actual criminal history
              of Mr. Ramos. So I must deny that motion for a downward
              departure.

App. at 26-27. Notwithstanding Ramos’ arguments to the contrary, the Court expressly

acknowledged its awareness of the addiction which motivated Ramos’ criminal conduct and

the efforts Ramos had undertaken to recover from his addiction. This is reflected in part by

the Court’s response to Ramos’ request for a sentence at the bottom of the guidelines range:


                                              -6-
                Well, Mr. Ramos has demonstrated a need for help with his
                substance abuse problem and [defense counsel] has told me that
                in the past he has successfully received such help.

                I will certainly recommend to the Bureau of Prisons that efforts
                continue in that respect.

                My sentence will be at the bottom of the guideline range that I
                have established. The reasons I am sentencing, I am going to
                sentence at the bottom of that guideline range are that both in
                the presentence report and in his remarks here today Mr. Ramos
                has demonstrated genuine remorse, and I do take account of the
                fact that his addiction did play a part in his criminal conduct.

App. at 29. Moreover, the Court’s appreciation of the role that Ramos’ addiction played in

his life is reflected by the steps it took to ensure that Ramos would remain drug free, such

as placing Ramos on supervised release for a term of four years following the end of his

sentence, during the course of which Ramos would be required to submit to drug testing.

       It is clear from the record that the District Court thoroughly considered the arguments

advanced by Ramos in support of his motion for downward departure and acted well within

its discretion in denying the relief sought. As such, the District Court’s decision is not

reviewable by this Court.       This appeal is therefore dismissed for lack of appellate

jurisdiction.

_____________________________

TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.

                                                          By the Court,


                                              -7-
       /s/ Julio M. Fuentes

      Circuit Judge




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