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United States v. Ramirez

United States Court of Appeals, Second Circuit

January 25, 2017

United States of America, Appellee,
v.
Ferney Dario Ramirez, Defendant-Appellant, Freddy Arellano, Defendant.

          Argued: September 2, 2016

         Appeal from the United States District Court for the Southern District of New York. No. 1:03-cr-1104-2 ― John G. Koeltl, Judge.[*]

         Appeal from a final order of the United States District Court for the Southern District of New York (Koeltl, J.), denying Ramirez's motion for a reduction in sentence under 18 U.S.C. § 3582(c)(2). Ramirez argues that the district court's denial violated the Ex Post Facto Clause. We AFFIRM.

          Yelena Konanova (Sanford I. Weisburst, on the brief), Quinn Emanuel Urquhart & Sullivan, LLP, New York, New York, for Defendant- Appellant Ferney Dario Ramirez.

          Amanda Houle, Assistant United States Attorney (Margaret Garnett, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

          Before: Raggi, Chin, and Droney, Circuit Judges.

          Droney, Circuit Judge

         In May 2004, Defendant-Appellant Ferney Dario Ramirez pleaded guilty to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A). The district court calculated Ramirez's Guidelines range as 360 months' to life imprisonment, and sentenced Ramirez to a term of 210 months' imprisonment. In 2015, Ramirez moved for a reduction in sentence pursuant to 18 U.S.C. § 3582(c)(2), arguing that Amendments 782 and 788 of the Sentencing Guidelines lowered his applicable Guidelines range. The district court acknowledged that Amendment 782 reduced Ramirez's Guidelines range to 324 to 405 months' imprisonment but denied the motion because a 2011 Amendment to U.S.S.G. § 1B1.10(b) prohibited a sentence reduction where the defendant's initial sentence was below the minimum of the amended Guidelines range. On appeal, Ramirez argues that application of § 1B1.10(b) to prohibit a sentence reduction violates the Ex Post Facto Clause of the United States Constitution. We affirm the district court's order.

         BACKGROUND

         A. Initial Sentencing

         On September 16, 2003, Ramirez was charged in a one-count indictment with conspiracy to possess with intent to distribute five kilograms or more of cocaine. On May 6, 2004, Ramirez pleaded guilty pursuant to a plea agreement that stipulated to a Guidelines range of 151 to 188 months' imprisonment. Prior to sentencing, however, Ramirez made a motion to withdraw from his plea agreement in light of United States v. Booker, 543 U.S. 220 (2005), so that he could argue for a sentence below the range stipulated in the plea agreement.[1] The district court granted the motion and held a Fatico hearing on March 30, 2006, to resolve factual disputes between the parties regarding, inter alia, the amount of drugs involved and Ramirez's acceptance of responsibility, ultimately concluding that more than 150 kilograms of cocaine were involved in the offense and that Ramirez was not entitled to credit for acceptance of responsibility.

         The district court proceeded to sentencing on May 25, 2006. Pursuant to U.S.S.G. § 2D1.1(c)(1), the district court calculated a base offense level of 38 based on the quantity of drugs involved in the offense. The district court applied a two-level enhancement under U.S.S.G. § 3B1.1 because Ramirez was an organizer, leader, or supervisor of the criminal activity, and another two-level enhancement under U.S.S.G. § 3C1.1 because Ramirez attempted to obstruct justice by influencing a witness. After refusing to grant various downward departures sought by Ramirez, the court calculated his adjusted offense level as 42. Given Ramirez's criminal history category of II, the district court determined that the applicable Guidelines range was 360 months' to life imprisonment.[2]

         The district court noted that the situation was "highly unusual" because the parties had initially stipulated to a 151-to-188- month Guidelines range before Ramirez withdrew from the plea agreement. Joint App'x at 74-75. The court also acknowledged that, despite his withdrawal from the plea agreement, Ramirez's guilty plea "did in fact save the government and the public substantial resources." Id. at 75. After considering the 18 U.S.C. § 3553(a) factors, the district court imposed a below-Guidelines sentence of 210 months' imprisonment, followed by five years of supervised release.

         Ramirez subsequently appealed his conviction and sentence, arguing that the district court erred in granting his motion to withdraw from the plea agreement and that his counsel was ineffective for advising him to withdraw. We affirmed the district court's judgment and dismissed Ramirez's ineffective-assistance claim without prejudice. See United States v. Ramirez, 267 F.App'x 11, 11, 13 (2d Cir. 2008) (summary order). On May 6, 2011, the district court denied Ramirez's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See Ramirez v. United States, No. 09- cv-4397 (S.D.N.Y. May 6, 2011), ECF No. 9. We denied a Certificate of Appealability and dismissed Ramirez's subsequent appeal. Ramirez v. United States, No. 11-2843 (2d Cir. Feb. 22, 2012), ECF No. 37.

         B. Subsequent Changes in the Sentencing Guidelines

         Under the 2002 Sentencing Guidelines in effect at the time of Ramirez's offense, as well as the 2005 Guidelines in effect when Ramirez was sentenced, district courts could generally reduce sentences in sentence-modification proceedings even where the initial sentence was below the low-end of the amended Guidelines range:

In determining whether, and to what extent, a reduction in the term of imprisonment is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the term of imprisonment that it would have imposed had the amendment(s) to the guidelines listed in subsection (c) been in effect at the time the defendant was sentenced, except that in no event may the reduced term of imprisonment be less than the term of imprisonment the defendant has already served.

U.S.S.G. § 1B1.10(b) (2002 ed.); accord id. § 1B1.10(b) (2005 ed.).[3] In addition, the Application Notes to that section confirmed that "the sentencing court has the discretion to determine whether, and to what extent, to reduce a term of imprisonment under this section." Id. § 1B1.10(b) cmt. n.3 (2002 ed.); id. § 1B1.10(b) cmt. n.3 (2005 ed.).

         In 2011, the Sentencing Commission adopted Amendment 759. That amendment prohibited district courts from imposing a reduced sentence that is below the minimum of the amended Guidelines range, unless the Government originally moved for a below-Guidelines sentence due to the defendant's substantial assistance to the authorities under U.S.S.G. § 5K1.1:

(A) Limitation.-Except as provided in subdivision (B), the court shall not reduce the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.
(B) Exception for Substantial Assistance.-If the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant's substantial assistance to authorities, a reduction comparably less than the amended ...

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