677 F. App'x 575
11th Cir.2017Background
- Ramirez pleaded guilty to failure to register as a sex offender under 18 U.S.C. § 2250(a).
- The PSR applied U.S.S.G. § 2A3.5(a)(2), treating Ramirez as a Tier II offender based on a 2002 Florida sexual-battery conviction involving a 16-year-old.
- The PSR also applied an eight-level enhancement under U.S.S.G. § 2A3.5(b)(1)(C) for committing a sex offense against a minor while in failure-to-register status, based on an incident involving a 12-year-old who allegedly was groped.
- After acceptance of responsibility and a criminal-history category IV, the advisory Guidelines range was 46–57 months.
- On appeal Ramirez argued (1) misclassification as Tier II, (2) improper eight-level enhancement based on unreliable hearsay and lack of conviction, and (3) procedural unreasonableness for failing to consider § 3553(a) factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ramirez should be classified as a Tier II offender | Ramirez argued his prior sexual conduct was consensual (because acquitted of unlawful sexual activity with a minor) and thus not comparable to abusive sexual contact against a minor | Government argued the 2002 sexual-battery conviction required a finding of nonconsensual contact and fits the Tier II definition | Affirmed: prior Florida sexual-battery conviction qualified Ramirez as Tier II |
| Whether an eight-level enhancement applies for committing a sex offense against a minor while unregistered | Ramirez argued the enhancement relied on unreliable hearsay from the child and mother and lacked a conviction for a sex offense | Government relied on mother’s and investigator’s testimony recounting the child’s statements and demeanor; guidelines require commission, not conviction | Affirmed: hearsay was sufficiently reliable on the record and a conviction is not required for the enhancement |
| Admissibility of hearsay at sentencing and burden of proof | Ramirez argued confrontation and unreliability barred reliance on the child’s out-of-court statements | Government noted sentencing courts may rely on hearsay if reliable; it bears the burden by a preponderance | Affirmed: hearsay admissible where reliability apparent; defendant had opportunity to rebut; confrontation clause not applicable to sentencing |
| Procedural reasonableness of the sentence | Ramirez argued the court miscalculated Guidelines and failed to consider § 3553(a) factors | Government pointed to the court’s explicit consideration of Guidelines and § 3553(a) | Affirmed: no procedural error; court stated it considered § 3553(a) factors |
Key Cases Cited
- United States v. De La Cruz Suarez, 601 F.3d 1202 (11th Cir. 2010) (standard of review for guideline interpretation and factual findings)
- United States v. Register, 678 F.3d 1262 (11th Cir. 2012) (abuse-of-discretion review for procedural reasonableness)
- United States v. Washington, 714 F.3d 1358 (11th Cir. 2013) (government’s burden to prove sentencing enhancements by a preponderance)
- United States v. Anderton, 136 F.3d 747 (11th Cir. 1998) (hearsay may be relied upon at sentencing if sufficiently reliable and defendant can rebut)
- United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009) (explicit findings on hearsay reliability not required when reliability is apparent)
- United States v. Lott, 750 F.3d 214 (2d Cir. 2014) (§ 2A3.5 enhancement can apply based on conduct, not conviction)
- United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009) (examples of significant procedural sentencing errors)
- United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005) (Confrontation Clause does not apply at sentencing)
AFFIRMED.