           08-2381-cr
           United States v. Ramos-Soto



                                    UNITED STATES COURT OF APPEALS
                                          F OR T HE S ECOND C IRCUIT

                                                   SUMMARY ORDER

R ULINGS   BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .    C ITATION TO SUMMARY ORDERS FILED AFTER J ANUARY 1, 2007,
IS PERMITTED AND IS GOVERNED BY THIS COURT ’ S    L OCAL R ULE 32.1 AND F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1. I N A
BRIEF OR OTHER PAPER IN WHICH A   LITIGANT CITES A SUMMARY ORDER , IN EACH PARAGRAPH IN WHICH A CITATION APPEARS , AT LEAST
ONE CITATION MUST EITHER BE TO    THE F EDERAL A PPENDIX OR BE ACCOMPANIED BY THE NOTATION : “( SUMMARY ORDER ).” A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS
CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILAB LE IN AN ELECTRONIC DATABASE WHICH
IS PUBLICLY ACCESSIBLE WITHOUT P AY MENT OF FEE    ( SUCH   AS THE DATABASE AVAILABLE AT HTTP :// WWW . CA 2. USCOURTS . GOV /).
IF   NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE , THE CITATION MUST INCLUDE REFERENCE
TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED .


             At a stated Term of the United States Court of Appeals
           for the Second Circuit, held at the Daniel Patrick Moynihan
           United States Courthouse, 500 Pearl Street, in the City of
           New York, on the 1 st day of December, two thousand and nine.

           Present: ROBERT D. SACK,
                    BARRINGTON D. PARKER,
                    RICHARD C. WESLEY,
                             Circuit Judges.
           __________________________________________________

           UNITED STATES OF AMERICA,

                                  Appellee,

                   - v. -                                                      (08-2381-cr)

           DAVID JIMMY RAMOS-SOTO,

                         Defendant-Appellant.
           __________________________________________________
     For Appellant:         BERNARD KLEINMAN (Joyce B. David,
                            Law Office of Joyce B. David, on the
                            brief), Brooklyn, New York.

     For Appellee:          SETH D. DUCHARME (Emily Berger, of
                            counsel), Assistant United States
                            Attorneys, for Benton J. Campbell,
                            United States Attorney for the
                            Eastern District of New York,
                            Brooklyn, New York.

          Appeal from the United States District Court for the
     Eastern District of New York (Garaufis, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Eastern District of New York is REMANDED.

 4       Defendant appeals from the sentence imposed following

 5   his guilty plea to one count of illegally reentering the

 6   United States after deportation for an aggravated felony, in

 7   violation of 8 U.S.C. § 1326(a), (b)(2).   We presume the

 8   parties’ familiarity with the underlying facts, the

 9   procedural history of the case, and the issues on appeal.

10       Defendant contends that the district court committed

11   procedural error by denying his motion for a non-Guidelines

12   sentence based on the potential sentencing disparity arising

13   from the absence of a “fast track” or “early disposition”

14   program in the Eastern District of New York.   The precise

15   contours of defendant’s argument to the district court,


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 1   however, are unclear from the record.     As a result of this

 2   ambiguity, the district court’s ruling relating to the fast-

 3   track disparity is also ambiguous.

 4       We are therefore unable to determine whether the

 5   district court ruled that:   (1) it was not required to issue

 6   a non-Guidelines sentence under 18 U.S.C. § 3553(a)(6) based

 7   on defendant’s disparity argument, and defendant had not

 8   persuasively argued that such a sentence was appropriate; or

 9   (2) it lacked the authority to issue a non-Guidelines

10   sentence under 18 U.S.C. § 3553(a).     If the first potential

11   interpretation reflects the intended meaning of the district

12   court’s ruling, such a decision would not necessarily be

13   inconsistent with our previous holdings.     See, e.g., United

14   States v. Mejia, 461 F.3d 158, 162-64 (2d Cir. 2006).

15   However, the second potential interpretation of the ruling

16   below remains the subject of an open question in this

17   Circuit.   See United States v. Liriano-Blanco, 510 F.3d 168,

18   172 (2d Cir. 2007).

19       Accordingly, the judgment of the district court is

20   hereby REMANDED in order to allow the court to clarify the

21   basis for its denial of defendant’s motion for a non-

22   Guidelines sentence.   Within ten days of a decision of the


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 1   district court, the jurisdiction of this Court may be

 2   restored by a letter to the Clerk of the Court, see United

 3   States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), in which

 4   event the renewed appeal will be assigned to this panel.

 5
 6                              For the Court
 7                              Catherine O’Hagan Wolfe, Clerk
 8
 9                              By: ______________________
10




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