UNITED STATES of America, Plaintiff-Appellee v. Julian Diaz RAMIREZ, Defendant-Appellant.
No. 06-11323.
United States Court of Appeals, Fifth Circuit.
Feb. 4, 2008.
Section 7212(a) provides that “[w]hoever corruptly . . . endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title or in any other way corruptly obstructs or impedes, or endeavors to obstruct or impede the due administration of this title” shall be guilty of an offense. We have stated that one acts corruptly in the context of
In this case, there was sufficient evidence for the jury to find beyond a reasonable doubt that Allison filed false Form 8300s in order to harass or intimidate city employees and thereby obtain some advantage in the proceedings against him arising out of his arrest and related traffic citations or in the federal lawsuit he had filed against the city and its employees. For example, a jury could have concluded that such intimidation as bringing the IRS in to investigate city employees would deter any prosecution of him and cause those involved in enforcing the laws to treat Allison exceptionally; furthermore, a reasonable jury could have concluded that the city might find it to its advantage to settle the civil suit favorably to Allison to avoid such harassing tactics. Or a jury easily could have concluded that Allison believed that such tactics would benefit him in his litigation with the city. Indeed, an IRS witness testified that filling out the forms with the word “refused” written in the blank intended for a social security number and with the “suspicious transaction” box checked would lead to investigation by the IRS. Both his criminal and civil proceedings were pending at or around the time he filed the false Form 8300s. Although Allison testified that he believed his actions were legitimate and that he sought no benefit for himself, the jury was entitled to reject Allison‘s testimony. Viewing the evidence in the light most favorable to the verdict, we hold that there was sufficient evidence to support the jury‘s conclusion that Allison acted with the intent to secure an improper advantage for himself and therefore acted corruptly under
IV.
For the foregoing reasons Allison‘s conviction is AFFIRMED.
Paul Lee Yanowitch, U.S. Attorney‘s Office Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
Jason Douglas Hawkins, Federal Public Defender‘s Office Northern District of Texas, Dallas, TX, for Defendant-Appellant.
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
Julian Diaz Ramirez (“Ramirez“) appeals the district court‘s imposition of a 24-month term of imprisonment upon revocation of his supervised release. For the following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Ramirez pleaded guilty in the United States District Court for the Northern District of Texas, Dallas Division (the “Dallas court“) to illegally re-entering the United States after deportation, in violation of
On August 14, 2006, Ramirez was convicted in the United States District Court for the Western District of Texas, Del Rio Division (the “Del Rio court“) of a third illegal reentry in violation of
On November 9, 2006, the Dallas court (the district court from which defendant currently appeals) held a revocation hearing.1 At the hearing, Ramirez pleaded true to the allegations in the probation officer‘s petition to revoke his supervised release and asked the court to consider the sentences he had already received for his conduct. The district court noted that the statutory maximum term of imprisonment was 24 months and that the Sentencing Commission policy statement recommended a range of imprisonment of 21 to 24 months. The district court also noted that Ramirez had been deported on three prior occasions and had illegally reentered on at least two prior occasions. It pointed out that Ramirez was already subject to a term of supervised release from the Del Rio court. The court then revoked Ramirez‘s supervised release, imposed a sentence of 24 months’ imprisonment, and stated that it would not impose any additional term of supervised release.2 Ramirez did not object to his sentence. In its written judgment, the court recommended that Ramirez be incarcerated in a facility where he could undergo treatment for his medical problems. In sum, then, in addition to the 177 months’ total imprisonment Ramirez had previously received for his three illegal border crossing convictions, the district court sentenced him to a 24-month revocation sentence based on his breach of the supervised release agreement he entered after the first conviction. Ramirez timely appealed the imposition of the 24-month revocation sentence, challenging its reasonableness.
II. JURISDICTION AND STANDARD OF REVIEW
This is an appeal of a sentence following revocation of supervised release in a crimi-
Traditionally, we have reviewed revocation sentences to determine whether they are “plainly unreasonable” because they involve no applicable sentencing guidelines. See, e.g., United States v. Gonzalez, 250 F.3d 923, 925 (5th Cir.2001). However, Ramirez argues that after the Supreme Court‘s decision in United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which established a “reasonableness” standard of review for post-conviction sentences, we must review all sentences, including revocation sentences, under the reasonableness standard. We have not yet decided whether Booker affects the standard we use to review revocation sentences. See, e.g., United States v. Jones, 484 F.3d 783, 791-92 (5th Cir. 2007). However, we need not address the issue to resolve this case. Because Ramirez did not object to the reasonableness of his sentence in the district court, the sentence is subject only to plain error review. United States v. Peltier, 505 F.3d 389, 391 (5th Cir.2007).3 Under plain error review, “We may correct the sentencing determination only if (1) there is error (and in light of Booker, an ‘unreasonable’ sentence equates to a finding of error); (2) it is plain; and (3) it affects substantial rights.” Peltier, 505 F.3d at 392. Moreover, the decision to correct the forfeited error is “within the sound discretion of the court of appeals, and the court should not exercise that discretion unless the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted).
III. DISCUSSION
Section 3583(e) of Title 18, United States Code, requires a court to consider several of the factors listed in
Ramirez makes three arguments in support of his contention that the district court failed to consider and properly balance the relevant sentencing factors in imposing a 24-month sentence. First, he claims that the district court failed to give sufficient weight to the previous sentences he has received. He notes that when the district court imposed its revocation sentence, the two reentry offenses that formed the basis of the revocation had already been punished by the Mississippi and Del Rio courts. He also points out that he had already received a total of 197 months’ imprisonment for his three illegal border crossings. With this argument, Ramirez fails to recognize that each sentence he received was for a distinct violation. Ramirez‘s first Dallas sentence, his Mississippi sentence, and his Del Rio sentence were based the three distinct violations of
The Sentencing Commission has recognized that “as a breach of trust inherent in the conditions of supervision, the sanction for the violation of trust should be in addition, or consecutive, to any sentence imposed for the new conduct.”
Second, Ramirez argues that the court below erred by effectively overruling the judgment of the Mississippi court, which had all of the relevant facts before it and imposed a sentence of only 77 months. Ramirez contends that because the Mississippi court could have imposed a longer sentence but did not do so, it must have concluded that a longer sentence was unnecessary. Ramirez asserts that the district court should have deferred to that conclusion and imposed no additional sentence. This argument is also unavailing. As discussed above, Ramirez‘s breach of his supervised release agreement was a distinct offense from his reentry offenses. The Mississippi court may have had before it all of the facts, but it did not have before it the issue of what punishment was required for the breach of the supervised release agreement. There was no need for the district court to defer to the conclusion of another court that was addressing a different issue.5 Thus, its decision not to do so was reasonable and did not constitute error or plain error.
Third, Ramirez argues that the district court erred by failing to consider the unfairness of the government‘s failure to execute the revocation warrant prior to Ramirez‘s deportation. Ramirez claims that had the warrant been executed in a timely fashion instead of being “saved up” until after Ramirez had committed another violation, his revocation sentence might have been shorter because the district court would have had only one supervised release violation to consider in imposing its revocation sentence. Ramirez also cites United States v. Tyler, 605 F.2d 851, 853 (5th Cir.1979), for the proposition that it is fundamentally unfair to a defendant to withhold allegations that would justify revocation.
This argument fails as well. Ramirez‘s reliance on Tyler is misplaced. In Tyler, we held that a defendant‘s due process rights were violated when a probation officer filed a revocation petition based on one offense but deliberately withheld several previous convictions from the petition, then brought a second revocation petition based on the earlier convictions after the first revocation petition had failed. Id. We found that the “lengthy delay, coupled with the probation officer‘s obvious decision not to file these charges in the first petition, [was] fundamentally unfair.” Id.
Moreover, even assuming arguendo that the district court erred by not considering the delay in the execution of the warrant, Ramirez has not satisfied the other prongs of the plain error test for this alleged error. For an error to be plain, it must be “obvious.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Because Ramirez points to no cases or other sources of law directly supporting his argument and because consideration of this issue would have affected neither the statutory maximum nor the policy statement‘s recommended range, the alleged error was not clear or obvious. In addition, Ramirez has not shown that the alleged error affected his substantial rights. Although it is possible that the district court based its decision to sentence Ramirez at the top of the range in part on the fact that Ramirez had committed two release violations instead of one, the record does not reveal whether that is the case. Because Ramirez has not shown “a reasonable probability that, but for the district court‘s misapplication of the [sentencing factors], he would have received a lesser sentence,” United States v. Villegas, 404 F.3d 355, 364 (5th Cir.2005), he has not shown that his substantial rights were affected.
In sum, the record indicates that Ramirez‘s sentence was reasonable and that the district court properly considered the relevant sentencing factors in imposing sentence. The court explicitly mentioned that the policy statement range was 21-24 months and imposed a sentence within that range. The court also stated that Ramirez had been deported on three prior occasions and had illegally reentered on at least two prior occasions, showing that it considered the defendant‘s history and characteristics and the need to protect the public from future crimes. It also mentioned that regardless of the sentence it imposed, the defendant would be subject to supervised release as part of the Del Rio case, and it decided not to impose a term of supervised release; this shows that the district court did consider Ramirez‘s previous sentences. Finally, in its written judgment, the court recommended that Ramirez be placed in a facility where he could receive medical care, demonstrating that it considered the need for the sentence imposed to provide for Ramirez‘s medical requirements. None of Ramirez‘s arguments establish that the sentence was unreasonable or that the district court committed error or plain error.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.