United States v. Ramirez-Erregun , 149 F. App'x 111 ( 2005 )


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  •                                                                                                                            Opinions of the United
    2005 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    9-20-2005
    USA v. Ramirez-Erregun
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 04-1579
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2005/526
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 04-1579
    UNITED STATES OF AMERICA
    v.
    GREGORIO RAMIREZ-ERREGUN,
    Appellant
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Crim. No. 03-cr-00401)
    District Judge: Hon. Michael M. Baylson
    Submitted Under Third Circuit LAR 34.1(a)
    September 16, 2005
    Before: SLOVITER, BARRY and SMITH, Circuit Judges
    (Filed:   September 20, 2005)
    OPINION
    SLOVITER, Circuit Judge.
    Gregorio Ramirez-Erregun pled guilty to charges of unlawful entry after
    deportation and was sentenced to forty-one months imprisonment. He appeals from the
    sentence. The District Court had jurisdiction pursuant to 
    18 U.S.C. § 3231
    .
    I.
    Because the parties are familiar with the case, we will cite only the pertinent facts.
    Ramirez-Erregun, a citizen of Mexico, was indicted for unlawful reentry into the United
    States after deportation, in violation of 
    8 U.S.C. § 1326
    (a) and 
    8 U.S.C. § 1326
    (b)(2).
    After Ramirez-Erregun pled guilty to the indictment, the District Court sentenced
    Ramirez-Erregun to forty-one months imprisonment, a term of supervised release of three
    years, and a special assessment of $100.
    The District Court based Ramirez-Erregun’s sentence on the then-mandatory
    United States Sentencing Guidelines. Under the Sentencing Guidelines, the base level for
    the offense to which Ramirez-Erregun pled guilty is eight. U.S.S.G. § 2L1.2(a). Because
    Ramirez-Erregun had previously been convicted of an aggravated felony for transporting
    an alien, his sentence was increased by a level of sixteen. See U.S.S.G. §
    2L1.2(b)(1)(A)(vii). The prior felony also raised his criminal history to category II. He
    received a three-level adjustment for acceptance of responsibility pursuant to § 3E1.1(a)
    and (b), yielding a total offense level of twenty-one. Under the Guidelines, an adjusted
    offense level of twenty-one and a criminal history category of II results in a sentence
    2
    ranging from forty-one to fifty-one months imprisonment.
    Ramirez-Erregun filed a Motion for a Downward Departure pursuant to U.S.S.G. §
    4A1.3(b)(1). In his motion, Ramirez-Erregun argued that his prior conviction for
    transporting an alien had disproportionately increased his sentence because it resulted not
    only in a sixteen-level increase, but also raised his criminal history category from I to II.
    Ramirez-Erregun also claimed that the increased sentence was not warranted because his
    involvement in the original crime was minimal: he simply transported fourteen illegal
    aliens who were already in the country to a place where they sought work and received
    “an extremely small amount of money for his participation in this illegal activity.” Supp.
    App. at 18a.
    The Government opposed Ramirez-Erregun’s Motion for a Downward Departure.
    In its response to the motion, the Government contested the “defendant’s recitation of the
    . . . facts of the offense, specifically that the defendant did not receive any money from
    the illegal aliens and only received $250 to drive the illegal aliens to North Carolina from
    Arizona.” Supp. App. at 32a. Material witnesses “stated that the defendant agreed to
    transport them for $750 each to be paid after they received work with the help of the
    defendant.” Id.
    The District Court denied Ramirez-Erregun’s motion and sentenced him to forty-
    one months imprisonment, noting that this “was the lowest sentence possible under the
    guideline range applicable.” Record at 41. The District Court also noted that the
    3
    sentence was “in the middle of the guideline range if the defendant had been sentenced in
    Category number I. It is also within the range if [the court] had given the defendant a one
    or two-level departure.” Record at 41.
    II.
    On appeal, Ramirez-Erregun argues that the District Court’s failure to grant his
    Motion for Downward Departure from the Sentencing Guidelines was an abuse of
    discretion. He repeats the arguments he made in his Motion for Downward Departure:
    that his prior conviction disproportionately increased his sentence and that the increased
    sentence is not warranted because his involvement in the prior crime was minimal.
    The Government argues that this court does not have jurisdiction over Ramirez-
    Erregun’s appeal. There may be some merit to the Government’s argument but because
    Ramirez-Erregun’s appeal raises a Booker issue, over which we do have jurisdiction,1 we
    need not resolve the issue the Government presses.
    III.
    In United States v. Booker, the Supreme Court held that the once-mandatory
    Sentencing Guidelines are “effectively advisory.”        U.S.     , 
    125 S. Ct. 738
    , 757
    1
    
    18 U.S.C. § 3742
    (a) (2) provides that “a defendant may
    file a notice of appeal . . . for review of an otherwise final sentence
    if the sentence was . . . imposed as a result of an incorrect
    application of the sentencing guidelines.” Because the District
    Court believed that the Sentencing Guidelines were mandatory, its
    application of the Guidelines was incorrect. Therefore, this court
    has jurisdiction over Ramirez-Erregun’s appeal.
    4
    (2005). At the time of Ramirez-Erregun’s sentencing, the District Court did not have the
    benefit of the Supreme Court’s decision in Booker.
    The Government’s argument that Ramirez-Erregun waived any claims under
    Booker, while true, is not fatal to Ramirez-Erregun’s appeal. This court has the power to
    address Ramirez-Erregun’s claim under Booker even if that claim was waived. In Bagot
    v. Ashcroft, 
    398 F.3d 252
    , 256 (3d Cir. 2005), we stated: “This Court has discretionary
    power to address issues that have been waived. . . . [It] may consider a pure question of
    law even if not raised below where refusal to reach the issue would result in a miscarriage
    of justice or where the issue’s resolution is of public importance.” (citations omitted).
    Ramirez-Erregun’s claim is a question of law that requires no additional findings of fact.
    Failure to address Ramirez-Erregun’s claim under Booker would result in a miscarriage
    of justice because “a defendant’s substantial rights may have been affected where the
    District Court erred by treating the Guidelines as mandatory rather than advisory.”
    United States v. Davis, 
    407 F.3d 162
    , 164 (3d Cir. 2005) (en banc). Therefore,
    notwithstanding the Government’s argument and Ramirez-Erregun’s counsel’s statement
    that Booker has no bearing on the determination of Ramirez-Erregun’s appeal, we address
    Ramirez-Erregun’s claim under Booker.
    Following Booker, we held in Davis that defendants sentenced under the prior
    mandatory guideline regime whose sentences were on direct appeal at the time of the
    Booker decision should have their sentencing challenge remanded to the District Court
    5
    for re-sentencing pursuant to the pronouncements of Booker. Davis, 
    407 F.3d at 165
    .
    Therefore, we will affirm the judgment of conviction but vacate the sentence and remand
    for re-sentencing.2
    .
    2
    Our decision in Davis mandates that Ramirez-Erregun’s
    sentence be vacated even though the Government argues that there
    is no merit to defendant’s claim that the District Court abused its
    discretion in refusing him a downward departure.
    

Document Info

Docket Number: 04-1579

Citation Numbers: 149 F. App'x 111

Filed Date: 9/20/2005

Precedential Status: Non-Precedential

Modified Date: 1/12/2023