
USCA1 Opinion

	




          December 16, 1993 UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________          No. 93-1403                                    UNITED STATES,                                      Appellee,                                          v.                                  EDIBERTO RAMIREZ,                                Defendant, Appellant.                                                                                      __________________                                     ERRATA SHEET               The  opinion of  this court  issued on  December 9,  1993 is          amended as follows:               Page 5, line 7:  Change "Ramirez'" to "Ramirez's".               Page 5, line 24:  Change first "was" to "is".                                                        UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1403                                    UNITED STATES,                                      Appellee,                                          v.                                  EDIBERTO RAMIREZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Francis R. Williams on brief for appellant.            ___________________            Edwin  J. Gale,  United  States Attorney,  Margaret E.  Curran and            ______________                             ___________________        Lawrence  D. Gaynor, Assistant  United States Attorneys,  on brief for        ___________________        appellee.                                 ____________________                                   December 9, 1993                                 ____________________                                                 Per Curiam.   Defendant-appellant  Ediberto Ramirez                      __________            pleaded guilty to  a two-count indictment which  charged him,            after having been convicted of a felony, with possession of a            firearm and of  ammunition, respectively, in violation  of 18            U.S.C.    922(g).  The presentence investigation  report (PSI            Report) stated that Ramirez was observed firing the weapon in            a   public  place.    Imposing  sentence  under  the  federal            sentencing   guidelines  and   departing   upward  from   the            applicable  guideline  sentencing range,  the  district court            sentenced  appellant to a  37-month prison term  and a 3-year            supervised  release term.   The  court  further ordered  that            appellant   be  remanded   to  the  custody   of  immigration            authorities  for deportation  proceedings  upon his  release.            Ramirez appeals from his sentence.  We affirm.                                          A.                                          A.                                          _                      The PSI Report recommended that Ramirez be assigned            eleven  criminal history points  based on his  prior criminal            convictions and on the fact that the instant offense occurred            while he  was under  a sentence of  probation for  a previous            offense.  It then listed the following prior criminal conduct            as an adult: three charges of assault with a dangerous weapon            (once a broom handle, once a BB gun, and once a handgun), the            last of which is still pending; and one charge of driving  to            endanger,  death  resulting  (associated  with  a  charge  of            possessing a stolen  motor vehicle), which is  still pending.            Finally,  the PSI Report listed two "factors that may warrant            departure":      (1)  that   several  of   appellant's  prior            convictions were consolidated for sentencing, and as a result            were  "undercounted"  in  the  calculation  of  his  criminal            history score,  and (2) that  the offense  of conviction  was            committed while Ramirez was free on bail.                      In announcing  its decision  to depart  upward, the            district court stated:                      I have  reviewed the  pre-sentence report                      and  considered  the  objections  of  the                      defendant  to an  upward  departure.   It                      seems to me  that this is a case in which                      upward departure  is not  only justified,                      it's required.   We have a  defendant who                      is 19 years or so old, who has never  had                      a  job so  far as  I can see,  whose sole                      occupation  is   taking  other   people's                      property  and  who   is  escalating  this                      conduct from  assaulting somebody  with a                      broomstick  to firing  a  firearm in  the                      air, the carrying of a firearm.  It seems                      to me the charge itself that he's here on                      doesn't really  indicate the  seriousness                      of the conduct  that's involved here  and                      it  seems  to  me  that  the  computation                      significantly     under-represents    the                      seriousness of the  past criminal conduct                      and the  likelihood of the  commission of                      further crime in  the circumstance.  Here                      the record pretty  fairly shows that  the                      defendant   is   content   to  accomplish                      nothing  but   violations  of   the  law.                      Although  he  does  indicate  that he  is                      sorry this happened, takes responsibility                      for it, it's pretty clear to me that this                      record  doesn't justify,  or this  record                      results  in  under-representation.    I'm                      going to depart                      ---                                        . . .                                         -3-                      You're 20 years old  and you've never had                      a job and you tell me that you don't know                      anything  about  earning  respect because                      you haven't been  respected.  Your mother                      has to  work  very hard  to support  you.                      It's  about time  you  took  some of  the                      responsibility for what you do.  It's not                      the alcohol that drives  these cars away,                      get into  accidents in  which people  get                      killed.  Not the alcohol  that does that.                      It's  not  the  alcohol  that steals  the                      cars.   You're  apparently  not so  drunk                      that  you can't steal a car and drive it.                      It's  you  driving   the  car,  not   the                      alcohol.   It's  you  stealing  and  then                      escalating  the cars  one after  another.                      It's  you  assaulting   somebody  with  a                      broomstick  and then  a BB  gun  and then                      finally  running  around  with  a  loaded                      pistol  firing it in  the air.   It's not                      the alcohol that's firing that gun.  It's                      not the alcohol  that possesses that gun.                      It's  you.  How many other people's lives                      are in  jeopardy because  you don't  take                      responsibility  for  what  you're  doing,                      until push comes  to shove, until  you're                      here and  you know  you're really  facing                      some time,  you know you're  really going                      to jail for  the first time.  I think you                      need  some time  to think about  what the                      future  of  your  life  is going  to  be,                      really, really think about it.                      The district  court, by  its reference  to the  PSI            Report  in the  context  of elaborating  the  reasons for  an            upward  departure,  appears  to have  based  its  decision to            depart, at  least in  part, on the  two possible  grounds for            departure  suggested by the probation department.  On appeal,            Ramirez raises no objection  to either of those  two grounds.            Rather,  his  sole   challenge  on  appeal  is  to   what  he            characterizes  as the  district  court's  decision to  depart            upward on the basis of his prior arrest record.                                           -4-                      His challenge  has two  prongs.   First, he  argues            that  an upward  departure on  the  basis of  a prior  arrest            record is forbidden by U.S.S.G.   4A1.3, which states that "a            prior arrest  record itself shall  not be considered  under              4A1.3."  Second,  he argues that the district  court "had not            adequately  explained the factual basis  for its use of those            arrests as a ground for departure."                                          B.                                          B.                                          _                        We  disagree with  Ramirez's characterization  of            the  district court's departure as impermissibly based on his            prior arrest  record itself.   U.S.S.G.   4A1.3 states:   "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.   Such information  may include, but  is not            limited to, information concerning:  . . . (e)  prior similar            adult  criminal   conduct  not   resulting   in  a   criminal            conviction."  To be sure, the guideline goes on to state that            "a prior arrest  record itself shall  not be considered"  for            this purpose.   But, so long as that  limitation is observed,            prior similar adult criminal conduct  is a basis on which the            Sentencing  Commission  has "encouraged"  upward  departures.            United States v.  Rivera, 994 F.2d 942, 948  (1st Cir. 1993).            _____________     ______                                         -5-            We conclude  that the  district court's  upward departure  is            permissible if it was made  on the basis of reliable evidence            of  prior similar  adult criminal  conduct,  even though  the            conduct  did  not  result,  or   had  not  yet  resulted,  in            convictions.                                          C.                                          C.                                          _                      We   turn   next    to   whether   the   particular            circumstances cited by  the district court "are of  a kind or            degree that they may appropriately be  relied upon to justify            departure."   Id. at  950.  In  this instance,  that question                          __            boils down to  whether the prior conduct is  "similar" to the            offense of conviction, as required by U.S.S.G.   4A1.3(e).                      The offense  of conviction, again, is possession of            a firearm, under circumstances in which Ramirez, in  a public            place, discharged  the firearm  in the  air.  The  similarity            between this offense  and appellant's  prior alleged  conduct            involving  assault with  a  broom  handle, a  BB  gun, and  a            handgun, -- possession  and/or threatened use of  a dangerous            weapon -- is  clear.  See United States v.  Tabares, 951 F.2d                                  ___ _____________     _______            405,  411  (1st  Cir.  1991)  (assuming  that  prior  conduct            involving possession of a dangerous weapon and assault with a            deadly weapon was similar to possession of a firearm); United                                                                   ______            States  v. Cota-Guerrero,  907  F.2d 87,  89 (9th  Cir. 1990)            ______     _____________            ("Inasmuch as they  show a propensity  toward violence and  a            willingness to use force, these crimes [assault with a deadly                                         -6-            weapon and assault  and battery] may be viewed  as similar to            possession of a firearm by a felon").                      The similarity between the  instant firearm offense            and  the  prior   conduct  of  driving  to   endanger,  death            resulting, is  less obvious.   Nevertheless, we find  -- with            appropriate respect  for the district court's superior "feel"            for the  particular circumstances  of the  case, Rivera,  994                                                             ______            F.2d at  951-52 --  that, at  least  under the  circumstances            present here, the offenses are sufficiently "similar" to form            part  of  the  justification for  an  upward  departure under            U.S.S.G.   4A1.3.                      The  district   court  stated   clearly  that   its            paramount  concern  was  appellant's record  of  "escalating"            recidivism --  a pattern of  conduct suggesting to  the court            that Ramirez did  not care "[h]ow  many other people's  lives            are  in jeopardy" because Ramirez did not take responsibility            for  his own  acts.   Appellant's  prior  alleged conduct  of            driving  to  endanger,  death  resulting,  like  the  instant            firearms  offense, displays  a  reckless indifference  toward            human life.   The  two crimes  can, therefore,  reasonably be            viewed, at  least under  present circumstances,  as "similar"            offenses.  Cf.  United States v.  Moore, 931  F.2d 3, 4  (1st                       __   _____________     _____            Cir. 1991) (treating as "similar" offenses that "reveal . . .            the same  sort of  dishonesty and  misappropriation of  other            people's property").                                         -7-                                          D.                                          D.                                          _                      The remaining question  -- since appellant has  not            challenged the "degree" of departure, see Rivera, 994 F.2d at                                                  ___ ______            950 -- is whether "the evidence . . . supports the departure-            related findings  of fact."   Id.   In  other words,  did the                                          __            district court base  its ruling on "reliable  information" of            "prior  similar adult  criminal conduct  not  resulting in  a            criminal  conviction"  that  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"?   U.S.S.G.              4A1.3.  We think this query merits an affirmative answer.                          In  Tabares, 951  F.2d 405,  we  upheld a  district                          _______            court's upward departure on the basis of three prior criminal            charges  (possession of a  dangerous weapon and  two assaults            with a deadly weapon)  that had not resulted in  convictions.            All  three prior  charges  had  been  dismissed  for  reasons            unrelated to the merits.  We determined that the PSI Report's            account  of  these  prior  instances  constituted   "reliable            information" to support an upward departure.  Id. at 411.  In                                                          ___            the process,  we noted  specifically defendant's  "failure to            contest   the  facts  and  the  absence  of  any  acquittal,"            circumstances  that  left  little  "doubt  that   these  acts            occurred."  Id.;  see also United States v.  Torres, 977 F.2d                        __    ___ ____ _____________     ______                                         -8-            321, 330 (7th Cir. 1992) (observing that, "[w]hen a defendant            has  an opportunity  to and  fails  to object  to the  facts,            information, and records used to support a departure [on  the            basis  of prior  similar adult  criminal  conduct], there  is            little  reason  to question  a  district court's  decision");            United States  v. Gaddy,  909 F.2d 196,  201 (7th  Cir. 1990)            _____________     _____            (similar).                      These authorities  get the  grease from  the goose.            In this  case, the  PSI Report  contains descriptions,  taken            from the original case files, of the conduct that led to each            of the prior charges.  In this case, as in Tabares, appellant                                                       _______            received  a full opportunity to object to these descriptions,            and  he raised  no objections.   The  district court  plainly            relied  on these  descriptive accounts  of appellant's  prior            conduct, not on the  mere fact of prior arrests.   And, there            can be no question of  the seriousness of the conduct alleged            in these  charges.   Under the same  reasoning we  applied in            Tabares,  therefore,  we  find that  the  evidence  of record            _______            adequately supports an upward departure on the basis of prior            similar adult criminal conduct.                                          E.                                          E.                                          _                     Turning to  appellant's final  argument --  that the            district court did  not adequately explain the  factual basis            for its use of the prior charges as a ground for departure --            we acknowledge that the court's discussion of its reasons for                                         -9-            departure might, in  one respect, fall slightly short  of the            requirements set forth in Rivera, 994 F.2d 942.  The district                                      ______            court's  remarks leave some ambiguity about whether the court            relied,  at least  in part,  on  the two  grounds for  upward            departure recited  in the  PSI Report.   In other  words, the            district court did  not expressly explain its  reasoning with            regard  to those two  grounds.   Appellant, however,  has not            challenged the  district court's use of these grounds, so any            error is necessarily harmless.                      As  to the remaining ground for departure, based on            appellant's prior  alleged  criminal  conduct,  the  district            court did  set forth its  reasoning in adequate detail.   The            court  explained its  concern  that  the  guideline  sentence            understated   the  potential   for  "escalating"   recidivism            suggested   by  appellant's  prior  conduct.    No  more  was            exigible.1                                          F.                                          F.                                          _                      We need go no further.  On this record, appellant's            sentence was lawfully constructed and imposed.                                            ____________________            1.  Even if we assume, arguendo,  that the district court did                                   ________            not  adequately  explain  its   analysis  under  the   Rivera                                                                   ______            standard,  we are mindful that appellant was sentenced before            this court  decided Rivera.   We have recognized  that Rivera                                ______                             ______            looked  to the future:  "In future  cases we would expect, in            line with our general discussion in Rivera, a very deliberate                                                ______            discussion of  the factors making  the case unusual.   But we            see no purpose served in this case, decided below without the            benefit of our recent guidance, in remanding to make explicit            what was implicit."   United States v. Sclamo,  997 F.2d 970,                                  _____________    ______            974 (1st Cir. 1993).  So it is here.                                         -10-                      Affirmed.                      ________                                         -11-
