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United States of America v. Natividad Dejesus Ramos

April 26, 2012

UNITED STATES OF AMERICA,
APPELLEE,
v.
NATIVIDAD DEJESUS RAMOS,
DEFENDANT-APPELLANT.



Per curiam.

10-3982-cr

United States v. Ramos

Argued: March 21, 2012

Before: MCLAUGHLIN, SACK, AND LIVINGSTON, Circuit Judges.

1 Appeal from a judgment of conviction entered in the Northern District of New 2 York (Suddaby, J.), sentencing Defendant-Appellant Natividad DeJesus Ramos 3 principally to a term of imprisonment of 51 months pursuant to his conviction for 4 illegally transporting aliens within the United States, in violation of 8 U.S.C. 5 § 1324(a)(1)(A)(ii); 51 months for assisting an inadmissible alien in entering the United 6 States, in violation of 8 U.S.C. § 1327; and 24 months for illegally being present in the 7 United States after having previously been removed, in violation of 8 U.S.C. § 1326(a), 8 all terms of imprisonment to run concurrently. Ramos argues, inter alia, that the 9 district court erred in adding two points to his criminal history score pursuant to 1 § 4A1.1(d) of the United States Sentencing Guidelines for his commission of an offense 2 while under a criminal justice sentence. Ramos urges that this was error because he 3 was allegedly unaware he had an unexpired term of supervised release at the time he 4 committed the present offenses. We hold that Defendant-Appellant's knowledge that 5 he was subject to a term of supervised release was not required for the district court 6 to impose an enhancement based on the fact that Defendant-Appellant committed the 7 instant crimes while "under a[ ] criminal justice sentence." U.S.S.G. § 4A1.1(d).

We decline to reach Ramos's ineffective assistance claim and dismiss it without prejudice.

9 With regard to all his other claims, we find them to be without merit and AFFIRM.

Defendant-Appellant Natividad DeJesus Ramos ("Ramos") appeals a judgment 17 of conviction entered in the Northern District of New York (Suddaby, J.) following 18 Ramos's guilty plea to illegally transporting aliens within the United States, in 19 violation of 8 U.S.C. § 1324(a)(1)(A)(ii) ("Count 1"); assisting an inadmissible alien in 20 entering the United States, in violation of 8 U.S.C. § 1327 ("Count 2"); and illegally 21 being present in the United States after having previously been removed, in violation 22 of 8 U.S.C. § 1326(a) ("Count 3"). On September 28, 2010, the district court sentenced 1 Ramos principally to 51-month terms of imprisonment on Counts 1 and 2, and a 24- 2 month term on Count 3, all to run concurrently. On appeal, Ramos contends that the 3 district court miscalculated the applicable sentencing range under the United States 4 Sentencing Guidelines (the "Guidelines range") by adding two points to his criminal 5 history pursuant to § 4A1.1(d) for Ramos's commission of the present offenses "while 6 under any criminal justice sentence, including . . . supervised release . . . ." U.S.S.G. 7 § 4A1.1(d). Ramos also contends that the district court erred, both procedurally and 8 substantively, in its consideration of the sentencing factors in 18 U.S.C. § 3553(a), and 9 he asserts that his attorney provided ineffective assistance at sentencing. For the 10 following reasons, we dismiss Ramos's ineffective assistance claim without prejudice 11 and otherwise AFFIRM the district court's judgment.

12 BACKGROUND

13 On July 23, 2001, Ramos was sentenced in the United States District Court for 14 the Southern District of Florida for violating 18 U.S.C. § 1544 by using the passport 15 of another to enter the United States.*fn1 Ramos was sentenced to time served, to be 16 followed by a three-year term of supervised release. As a condition of his supervised 17 release, the court ordered as follows:

18 If removed, the defendant shall not re-enter the United States without the 19 written permission of the Attorney General of the United States. Should 20 the defendant be deported, the term of probation/supervised release shall 21 be non-reporting while he[] is residing outside the United States. If the 22 defendant reenters the United States within the term of 23 probation/supervised release, he is to report to the nearest U.S. Probation 24 Office within 72 hours of his arrival.

1 After sentencing, Ramos was released into the custody of the Immigration and 2 Naturalization Service for removal proceedings.*fn2 3 Ramos was deported to El Salvador, his country of origin, on September 25, 4 2001. He reentered the United States approximately nine months later, still within 5 the term of his supervised release. Ramos did not report to a United States Probation 6 Office ("Probation Office") as required pursuant to his 2001 sentence. Ramos alleges 7 that, at the time of his illegal re-entry, he did not understand that he was on supervised 8 release and was required to report to a Probation Office, since he thought his sentence 9 terminated upon his removal to El Salvador. Once the fact of Ramos's illegal re-entry 10 and failure to report became known to the probation authorities (still during the 11 original term of his supervised release), a warrant issued for Ramos's arrest for 12 violation of the terms of his supervised release. 13 On August 21, 2009, while the above-mentioned warrant was still outstanding, 14 Ramos was detained while assisting the illegal entry of aliens across the border 15 between the United States and Canada. Ramos subsequently pled guilty to all three 16 counts of an indictment charging him with violations of 8 U.S.C. § 1324(a)(1)(A)(ii) 17 (transportation of an illegal alien in knowing or reckless disregard of the fact that the 18 alien is in the United States illegally); 8 U.S.C. § 1327 (knowing aid or assistance to 19 the entry of an alien inadmissible under 8 U.S.C. § 1182); and 8 U.S.C. § 1326(a) 1 (illegal presence in the United States of an alien previously removed). At sentencing, 2 the district court adopted the Guidelines calculation in the Presentence Investigation 3 Report, concluding that Ramos's Guidelines range was 51 to 63 months, based upon a 4 total offense level of 22 and a criminal history category of III. In reaching this result 5 (and over the defendant's objection), the district court imposed two criminal history 6 points based on the fact that, at the time he committed the instant offenses, Ramos 7 was "under a[] criminal justice sentence." U.S.S.G. § 4A1.1(d). The district court 8 sentenced Ramos principally to a prison term of 51 months for each of the first two 9 counts discussed above and 24 months for the third count, all to run concurrently.

10 DISCUSSION

11 Standard of Review 12 "[T]he role of the Court of Appeals [in the review of sentences] is limited to 13 examining a sentence for reasonableness, which is akin to review under an 'abuse-of- 14 discretion' standard." United States v. Hasan, 586 F.3d 161, 167 (2d Cir. 2009). A 15 district court may commit two kinds of error in sentencing: procedural or substantive. 16 "A district court commits procedural error where it fails to calculate the Guidelines 17 range . . . , makes a mistake in its Guidelines calculation, or treats the Guidelines as 18 mandatory." United States v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (en banc). A 19 sentence is substantively unreasonable ...


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