UNITED STATES OF AMERICA, Aрpellee, v. BETSY RAMOS, Defendant-Appellant.
No. 19-4373
United States Court of Appeals For the Second Circuit
November 12, 2020
August Term 2020
Argued: September 14, 2020
Appellant challenges her 24-month sentence following a violation of supervised release, arguing that the district court (Garaufis, J.) could not consider a recidivism enhancement to determine that the violation – commission of a state felony while on supervised release – involved an offense “punishable by a term of imprisonment exceeding twenty years” under
AFFIRMED.
RONALD L. KUBY (Rhidaya S. Trivedi, on the brief), Law Office of Ronald L. Kuby, New York, NY, for Defendant-Appellant.
M. KRISTIN MACE (Kevin Trowel, on the brief), Assistant United States Attorneys, for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, New York, NY, for Appellee.
Appeal from the United States District Court for the Eastern District of New York No. 93-cr-360, Nichоlas G. Garaufis, Judge.
Before: LYNCH, SULLIVAN, AND PARK, Circuit Judges.
This appeal requires us to decide whether, in grading a violation of supervised release under
I. Background
Ramos‘s extensive criminal history began in 1986 when, at the age of twenty-one, she sold a small amount of cocaine to an undercover law enforcement officer. One year later, Ramos was again convicted of selling narcotics to an undercover police officer – this time, heroin. The following year, she was arrested for yet another drug sale, resulting in her third narcotics conviction in as many years and a sentence of two-and-a-half to five years’ incarceration.
Almost immediately after her release from prison, Ramos returned to a life of crime. On March 21, 1993 – while still on probation – Ramos arrived at John F. Kennedy International Airport aboard а flight from Bogotá, Colombia. During a routine Customs inspection, it was revealed that Ramos and a coconspirator were acting as drug mules, having ingested dozens of balloons filled with more than 818 grams of heroin.
Four months after her arrest, and facing between five and forty years behind bars, Ramos pleaded guilty, pursuant to a cooperation agreement with the government, to importing heroin into the United States. Given both the severity of her crime and her extensive criminal history – which rendered her a Career Offender – the district court calculated Ramos‘s Guidelines range to be 151 to 188 months’ imprisоnment.1 Nevertheless, in light of Ramos‘s cooperation and personal history, the court determined that a substantial downward departure was warranted, and ultimately sentenced Ramos to only 36 months’ imprisonment, to be followed by a 10-year term of supervised release.
As Ramos tells it, “[t]heir relationship was fraught from the beginning.” Ramos Br. at 7. Not only was Serrano a drug user himself, but he was also verbally and physically abusive to Ramos. And because Serrano was a convicted felon, associating with him put Ramos in violation of her conditions of supervision – a fact which her probation officer warned her about. Ramos nevertheless stayed with Serrano and even allowed him to move in with her.
On May 26, 1998, two New York City police officers, Anthony Mosomillo and Miriam Torres, went to Ramos‘s residence to execute a bench warrant for Serrano‘s arrest. Ramos lied to the officers and told them that she had not seen Serrano in some time. The officers left, but quickly returned after learning from Ramos‘s neighbor that there was a trap door in the floor of Ramos‘s apartment. Sure enough, upon searching her home, the officers located Serrano hiding in that hidden compartment.
After ordering Serrano to step out of the hole, the officers attempted to arrest him. Serrano refused, and after struggling with the officers, managed to get hold of Officer Torres‘s service weapon. At that point, Serrano and Officer Mosomillo exchanged gunfire, which resulted in the deaths of both men.
The following year, Ramos was tried for her role in Officer Mosomillo‘s death and was ultimately convicted of second-degree manslaughter – otherwise known as reckless manslaughter – pursuant to
More than twenty years later, on Decеmber 10, 2019, Ramos was released from state prison and immediately transferred to federal custody, where she was presented on a violation of the terms of her supervised release stemming from the May 1998 shooting. In connection with the federal violation, the U.S. Probation Department determined that Ramos‘s state offense constituted a “Grade A” violation as defined by
At the sentencing hearing, several friends and family members of Officer Mosomillo appeared and asked to testify about Ramos‘s role in the shooting and its impact on their lives. Although the district court permitted their testimony, the court explained that its “role . . . [wa]s not to sentence Ms. Ramos for” the death of Officer Mosomillo, but to sentence her for the “breach of trust” associated with the violation of her supеrvised release. App‘x at 18–19. For her part, Ramos focused on the significant amount of time she had already spent in custody, her rehabilitation, and the difficult circumstances in her life, including
Ultimately, the district court adopted Probation‘s violation report without change, including its proposed Guidelines range, and sentenced Ramos to the maximum permitted term – 24 months’ incarceration. In reaching that determination, the district court indicated that it considered each оf the
Ramos now appeals that sentence, arguing that the district court committed several procedural errors. She also requests that, in the event of vacatur and remand, her case be reassigned to a different judge for resentencing.
II. Standard of Review
Like any other sentence, we review a sentence for a violation of supervised release for both procedural and substantive reasonableness. See United States v. Smith, 949 F.3d 60, 65–66 (2d Cir. 2020). This means that we check the sentence to ensure both that the district court followed the right steps in imposing it, and that the sentence is not unreasonably harsh or unreasonably lenient. See United States v. Chu, 714 F.3d 743, 746 (2d Cir. 2013).
In conducting that review, we ordinarily apply a lenient “abuse-of-discretion standard.” Smith, 949 F.3d at 66 (internal quotation marks omitted). That standard requires us to “take into account the totality of the circumstances, giving due deference to the sentencing judge‘s exercise of discretion, and bearing in mind the institutional advantages of district courts.” Chu, 714 F.3d at 746 (internal quotation marks omitted).
But things change when a defendant raises an objection on appeal that she failed to raise below. In that circumstance, we review the sentence only for plain error. See Smith, 949 F.3d at 66. To meet the plain error standard, a defendant must establish four elements: “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable disputе; (3) the error affected the appellant‘s substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Balde, 943 F.3d 73, 96 (2d Cir. 2019) (internal quotation marks omitted).2
III. Discussion
Although Ramos does not challenge the substantive length of her sentence, she argues that the district court conducted the sentencing proceeding in a procedurally unreasonable manner.
A. Ramos‘s Guidelines Range
“In imposing a sentence for violation of supervised release, the sentencing judge may freely impose a term lower or higher than the recommended Guidelines range, but must start with a legally correct interpretation of the Guidelines.” United States v. McNeil, 415 F.3d 273, 277 (2d Cir. 2005). Among other things, that requires the district court to consult the policy statements contained in Chapter 7 of the Sentencing Guidelines. See United States v. Kingdom (U.S.A.), Inc., 157 F.3d 133, 136 (2d Cir. 1998). Chapter 7 provides an alphabetical classification system with different recommended sentencing ranges based on the severity of the violation of supervised release. See
(1) Grade A Violations – conduct constituting
(A) a federal, state, or local offense punishable by a term of imprisonment exceeding one year that
(i) is a crime of violence,
(ii) is a controlled substance offense, or
(iii) involves possession of a firearm or destructive device of a type described in26 U.S.C. § 5845(a) ; or(B) any other federal, state, or local offense punishable by a term of imprisonment exceeding twenty years;
(2) Grade B Violations – conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year.
Ramos argues that the district court committed plain error by classifying her state crime as a Grade A violation, when it should have been deemed a Grade B violation. The district court‘s decision was driven by its determination that the offense was a “crime of violence” under
Rather than dispute Ramos‘s assertions, the government instead points out that the Grade A classification was appropriate because, even assuming Ramos‘s argument on appeal is correct, the state offense that constituted the violation was “punishable by a term of imprisonment exceeding twenty years.”
Ramos‘s response is a technical one. As noted above, the maximum term of imprisonment for second-degree manslaughter is ordinarily 15 years. See
According to Ramos, the district court erroneously considered those sentencing enhancements when it should have limited itself to the statutory maximum sentence for a garden variety second-degree manslaughter charge.
Whether Ramos‘s manslaughter conviction constituted a Gradе A or Grade B violation thus turns on whether a sentencing court may take recidivism enhancements into account in determining the maximum potential term of imprisonment for a crime. We have never answered that question. Fortunately, many of our sister circuits have, and all are in agreement: a recidivism enhancement is fair game for a sentencing court to consider when assessing the maximum potential penalty for an offense constituting a violation of supervised release. See United States v. Rodriguez, 945 F.3d 1245, 1251–52 (10th Cir. 2019); United States v. Montgomery, 893 F.3d 935, 940–41 (6th Cir. 2018); United States v. Wynn, 786 F.3d 339, 343 (4th Cir. 2015); United States v. Seiber, 516 F. App‘x 208, 215 (3d Cir. 2013); United States v. Trotter, 270 F.3d 1150, 1154–56 (7th Cir. 2001); United States v. Boisjolie, 74 F.3d 1115, 1116–17 (11th Cir. 1996).3
We agree with these decisions and adopt the same rule, both because of the languаge of the Guidelines and because of the sentencing goals inherent in a revocation of supervised release. The Sentencing Commission‘s commentary indicates that a court should “consider all conduct that affects the maximum penalties for a supervised release violation,” not just “the ‘basic’ penalty for a given offense.” Montgomery, 893 F.3d at 940 (citing Wynn, 786 F.3d at 343). Indeed, as the Commission‘s note to
A violation of this condition may be charged whether or not the defendant has been the subject of a separate federal, state, or local prosecution for such conduct. The grade of violation does not depеnd upon the conduct that is the subject of criminal charges or of which
the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be based on the defendant‘s actual conduct.
In addition, “the very purpose of a supervised release revocation hearing is to determine the gravity of the breach of trust committed by the defendant in the context of the ‘conditional liberty’ [s]he was granted following h[er] conviction of the underlying offenses.” Wynn, 786 F.3d at 343. That analysis “necessarily requires consideration of the defendant‘s criminal history” at the time the violation occurred. Id.; see also Boisjolie, 74 F.3d at 1116 (“Using the maximum sentence under the Habitual Felony Offender Act in determining [the defendant‘s] violation grade is consistent with the Sentencing Guidelines’ objective of achieving proportionality in sentencing through tailoring a punishment to fit the individual criminal and the crime committed.“).
Relatedly, we reject Ramos‘s assertion that considering recidivism enhancements in assessing the violation grade unfairly results in the “double counting” of past criminal convictions, once in setting the criminal histоry category and then again in setting the offense level. Criminal history and offense level measure two different things: “[t]he offense level represents a judgment as to the wrongfulness of the particular act,” while “[t]he criminal history category principally estimates the likelihood of recidivism.” United States v. Campbell, 967 F.2d 20, 24 (2d Cir. 1992); cf. United States v. Gibson, 135 F.3d 257, 261 (2d Cir. 1998) (rejecting the notion that “the use of [a defendant‘s] prior convictions both to enhance the Career Offender Guideline and to add criminal history points amount[s] to improper double counting“). Unsurprisingly, then, other courts of appeals that have considered this “double counting” argument in the context of grading a violation of supervised release have rejected it out of hand. See Seiber, 516 F. App‘x at 216; Trotter, 270 F.3d at 1155 (“If the Guidelines’ use of criminal history to influence the final sentence blocks recidivist enhancements under
Accordingly, we agree with our sister circuits that recidivism enhancements should enter the mix when a court is grading a violation of supervision.5 As a result, Ramos‘s crime of second-degree manslaughter was “punishable by a term of imprisonment exceeding twenty years” – a Grade A violation under
B. Procedural Reasonableness of the Sentencing Hearing
In addition to challenging the district court‘s Guidelines calculation, Ramos also asserts that the sentencing hearing was conducted in a procedurally improper manner. Again, we disagree.
In рractice, the procedure that a district court employs in sentencing a defendant for violating her term of supervision is nearly identical to any other sentencing. See Smith, 949 F.3d at 65–66. But there are two aspects unique to a sentence imposed in the revocation context that bear mentioning. First, “the degree of specificity required for the reasons behind [such] a . . . sentence is less than that for plenary sentencing.” Id. at 66. Second, a sentence for a violation of supervised release should primarily sanction the defendant‘s “breach of trust,” not the conduct constituting thе violation itself. United States v. Edwards, 834 F.3d 180, 194 (2d Cir. 2016) (citing
Although Ramos puts forward over a half-dozen different arguments for why her sentencing hearing was procedurally improper, they all essentially reduce to two main points: (i) the district court based its sentencing decision on improper evidence, as it both failed to consider relevant mitigating facts and incorrectly placed significant stock in victim impact statеments, and (ii) the district court primarily sentenced her based on the severity of her state offense and not her breach of trust. Neither of these arguments has merit.
The district court began the proceeding by clarifying that its “role . . . [wa]s not to sentence Ms. Ramos” for the 1998 killing of Officer Mosomillo, but “to determine the appropriate punishment for [her] breach of trust” by committing a new crime while still on supervised release. App‘x at 18–19. The court then explained each of the section 3553(a) factors and indicated that those factors would help guide the court‘s decision-making process. Then, after again reiterating the “limited purpose” of the sentencing, id. at 21, the court allowed various friends and family of Officer Mosomillo, including Officer Torres, to make statements on the record about how Ramos‘s actions had affected them.
Indeed, in ultimately concluding that a sentence of 24 months’ imprisonment was appropriate, the district court identified a host of supporting reasons, many of which did not concern the severity of the violation. To start, the district court noted that it considered all the required section 3553(a) factors, which alone “reinforce[s] the presumption” that the court acted appropriately. See United States v. Hernandez, 604 F.3d 48, 54 (2d Cir. 2010). Next, the district court observed that Ramos “rejected” the “gift of a relatively brief prison sentence” following her narcotics smuggling conviction in 1993. App‘x at 75–76. In the wake of аn original sentence that was nearly 10 years below Ramos‘s recommended Guidelines range, Ramos‘s decision to violate the terms of her supervision constituted a particularly egregious breach of trust. See United States v. Verkhoglyad, 516 F.3d 122, 130 (2d Cir. 2008) (reasoning that the breach of trust reflected in a violation is exacerbated if the defendant received a “lenient [original] sentence[]“).
The district court also pointed to a recent prison disciplinary event that occurred while Ramos was in custody pending her sentencing as evidence that Ramos still has trouble with authority figures. While Ramos suggests that this “tangent about [an] ‘unmade bed‘” was unreasonable, Ramos Br. at 36, we disagree. The disciplinary infraction at issue was not simply
As for Ramos‘s contention that the district court failed to appropriately consider mitigating factors, that too is simply incorrect. The parties discussed such information at length, including the domestic violence Ramos suffered at the hands of Serrano and her declining health. See United States v. DiRose, 586 F. App‘x 808, 810 (2d Cir. 2014) (explaining that a discussion of the relevant issues by the parties “reinforce[d] the presumption that the district court took all of the required factors into account“). And while the district court was not obligated to exhaustively list on the record every fact it considered in imposing Ramos‘s sentence, see United States v. Pugh, 945 F.3d 9, 25 (2d Cir. 2019), it expressly referenced several of these mitigating circumstances.
For instance, the district court acknowledged that Serrano played some role in exacerbating the “disastrous path” that Ramos found herself on in 1998. App‘x at 76. It also credited Ramos‘s expressions of remorse for her actions. And, finally, the court discussed the “particular difficulty” it faced in sentencing Ramos given her declining health. Id. at 77. In fact, the district court delayed Ramos‘s sentencing for more than a week because the cоurt wanted “to hear more about [her] medical condition.” Id. at 108. The district court expressly considered and weighed these mitigating circumstances. It was within the court‘s discretion to assign the weight to be given to them in balancing the many considerations relevant to selecting the appropriate sentence.
At bottom, Ramos engaged in a serious violation of the terms of her supervised release after having been the beneficiary of a remarkably lenient sentence in 1994. While the seriousness of her violation, and the carnage it caused, were undoubtedly a major focus of the evidence submitted to the district court at the sentencing hearing, the court repeatedly explained that its role was to punish Ramos‘s breach of trust and that its sentencing decision would be driven by a holistic assessment, which included the applicable section 3553(a) factors. Considering the record as a whole, we cannot say that the district court imposed a procedurally unreasonable sentence.
IV. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
RICHARD J. SULLIVAN
CIRCUIT JUDGE