United States v. Rene Ramirez GomezUnited States v. Rene Ramirez Gomez
COUNSEL
ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF
OPINION
THAPAR, Circuit Judge. This case forces us to confront the tragic consequences of a child rapist‘s illegal crossings into the United States. After Rene Ramirez Gomez unlawfully entered the United States, he raped his biological daughter multiple times. After serving a short state-court sentence, he was deported.
But he returned—crossing the border illegally yet again. Operating under a false name, Ramirez Gomez sexually abused the three young children of his new girlfriend. Indiana charged him for those offenses, while the federal government charged him with failure to register as a sex offender and with illegal re-entry into the United States.
Ramirez Gomez pled guilty to the federal charges and was sentenced to 51 months in prison, to be served on top of his anticipated state-court sentence. He now brings two procedural challenges to his federal sentence.
I.
In 2004, Rene Ramirez Gomez entered the United States from Mexico and immediately began a life of crime. First, he was arrested for using a driver‘s license without authorization. Then, he was convicted of giving a false name to a law enforcement officer. A few years later, he was convicted for driving under the influence of alcohol. He was also arrested and convicted four times for driving without a license.
In 2014, things got more violent. First, he was convicted of perjury for making a false report to police after he was “involved in a domestic violence incident involving a hit-and-run.” R. 25, Pg. ID 194. What was the domestic violence incident? A woman (apparently, a girlfriend of Ramirez Gomez) deliberately crashed into a car driven by Ramirez Gomez‘s wife before fleeing the scene. When Ramirez Gomez‘s wife tried to call 911, hе physically assaulted her and prevented her from calling the police. After the police arrived, Ramirez Gomez was arrested and charged with domestic assault and interfering with emergency calls, but those charges were dismissed after he agreed to comply with certain conditions. But Ramirez Gomez was convicted of perjury after he lied to officers by saying he didn‘t know the other woman.
Then, in 2015, Ramirez Gomez raped a young child—his own daughter. He admitted to having sexual intercourse with his daughter, who was just 12 years old, multiple times over multiple years. After serving fewer than two years in state prison, he was deported to Mexico. Not long after he was deported, Ramirez Gomez illegally returned to the United States. This time, he went to Indiana, where he began using the fake name “Agustin Ramirez.” He began dating a girlfriend, moved in with her, and had a child with her. But his girlfriend had three other young children living with them—two daughters and one son.
The district court found that Ramirez Gomez committed horrifying sexual crimes against these children. He “smacked” and touched the genitals of the two girls—the
In addition to the physical crimes he committed against his girlfriend‘s children, Ramirez Gomez sent disturbing messages to his daughter—the one he raped during his first illegal stay in the United States—and his ex-wife. Ramirez Gomez used Facebook to contact his daughter, who had since been adopted into a new family. He asked her to leave her new family and come live with him. He also blamed his daughter “for what happened” and “encouraged [her] to misbehave at her adoptive parents’ home.” Id. at Pg. ID 189.
As for his ex-wife, Ramirez Gomez sent her text messages boasting about his connections to the MS-13 gang. He said he almost had someone “make ‘salad’ out of her.” He threatened to burn down her home. Ramirez Gomez told his wife that she would soon be called the “black widow” because he would have her boyfriend killed—which he described as “not a threat, but a promise.” Id. He also threatened to “get his daughter back, no matter what,” and take her to Mexico. Id.
After these crimes were reported, law enforcement investigated and ultimately arrested Ramirez Gomez. Indiana charged him with the underlying crimes of child molestation. Tennessee charged him with violating his probation (for the earlier crime of raping his daughter) and brought two cases for “Violation of the Sex Offender Registry“: one for failing to report his residence after re-entering the United States, and one for communicating with his daughter without her consent. Virginia also charged Ramirez Gomez with probation violations. For its part, the federal government charged Ramirez Gomez with failing to register as a sex offender and illegal re-entry into the United States.
Ramirez Gomez pled guilty to both counts in the federal proceeding. The court sentenced him to 51 months in prison on each count, to run concurrently with each other and with any sentence imposed by Tennessee for one count of “Violation of the Sex Offender Registry” (for failing to register as a sex offender). But the district court ordered that the 51-month federal sentence would be served consecutively to any sentence imposed by Virginia or Tennessee, for the probation violations and the other case for “Violation of the Sex Offender Registry,” or by Indianа, for the underlying child-molestation crimes. Put differently, the 51 months would be added on top of whatever prison time Ramirez Gomez gets from the state courts for the probation violations and sex offenses.
Ramirez Gomez now appeals his federal sentence. He brings two procedural challenges. We address each in turn.
II.
Ramirez Gomez first objects to the district court‘s application of an eight-level enhancement to calculate his offense level under the Sentencing Guidelines.
A.
When federal courts sentence a convicted criminal, they consult the Sentencing Guidelines issued by the United States Sentencing Commission. Using the Guidelines, courts must calculate and assign to the defendant (1) an offense level and (2) a criminal history score. Here, the district court determined that Ramirez Gomez had an offense level of 20 and a criminal history score of five, placing him in Category III, and resulting in a sentencing range of 41 to 51 months’ imprisonment. See
On appeal, Ramirez Gomez argues that the district court shouldn‘t have applied this enhancement. He does not contest the district court‘s factual determination on appeal. Instead, he argues that the enhancement described in
We disagree. The Guidelines provision says nothing about a conviction. As other Guidelines provisions demonstrate, a sentencing enhancement only requires a conviction when the relevant guideline expressly says so. Nor does Ramirez Gomez raise a colorable constitutional argument. Accordingly, we join every other court of appeals to have considered the question and hold that
B.
Ramirez Gomez is making a textual argument about the meaning of the words “committed . . . a sex offense” as used in
1.
We start, as always, with the ordinary meaning of the text.
This definition applies to Ramirez Gomez. The moment that Ramirez Gomez sexually molested the children of his girlfriend,
The definitions of “commit” and “sex offense” say nothing about a conviction in court. The definitions don‘t indicate that Ramirez Gomez needs to have been convicted of doing, performing, or perpetrating a criminal sexual act. And that makes sense. As all English speakers will understand, an offense is “commit[ed]” the moment that the action is performed—not the moment when a court of law pronounces its judgment on whether the action was performed. Section
Our caselaw supports this reading. We‘ve previously held that when a guideline uses the word “committed” in connection with “offense,” a conviction is not required. United States v. Winnick, 807 F. App‘x 464, 467 (6th Cir. 2020). In Winnick, the defendant objected to the district court‘s denial of a sentencing reduction under
Other provisions of the Guidelines also support this reading. When the Sentencing Commission wants to require a conviction before allowing a sentencing enhancement, it says so expressly. For example,
In holding that
2.
Although Ramirez Gomez disavows any intention to bring a Sixth Amendment claim, he invokes that provision at various points throughout his briefing. For example, he states that enhancing a sentence based on judicial factfinding is “constitutionally dubious.” Reply Br. at 2. He is wrong. In determining the appropriate Guidelines range, judges often have to find facts. Indeed, such factfinding is permissible so long as the factfinding does not increase the mandatory minimum or maximum penalties that a defendant faces. E.g., Alleyne v. United States, 570 U.S. 99, 116–17 (2013); United States v. White, 551 F.3d 381, 382 (6th Cir. 2008) (en banc). Here, it doesn‘t. All agree that Ramirez Gomez faced a statutory minimum term of zero years and a statutory maximum term of 20 years. The district court‘s application of
3.
For the sake of completeness, we now turn to the relevant provisions of the commentary to the Sentencing Guidelines. But first, a word of explanation. The Guidelines’ “commentary” consists of suggestions from the United States Sentencing Commission on how to interpret or apply the Guidelines. United States v. Riccardi, 989 F.3d 476, 484 (6th Cir. 2021). Notably, this “commentary” doesn‘t go through the same approval process as the Guidelines’ operative text. Id. It “never passes through the gauntlets of congressional review or notice and comment.” United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc) (per curiam). For that reason, the commentary “has no independent legal force.” Id. It contаins merely “interpretations of“—not “additions to“—“the Guidelines themselves.” Id. (citation and emphases omitted).
a.
For what it‘s worth, the commentary to
b.
Next, we turn to
As an initial matter, much of Ramirez Gomez‘s briefing proceeds from the premise that
But even if we did import that definition, it wouldn‘t change anything for Ramirez Gomez. First, we note that the SORNA definition of “sex offense” suggested by the commentary doesn‘t actually differ from the definition we‘ve derived. “[A] criminal offense that has an element involving a sexual act or sexual contact with another,”
So why does Ramirez Gomez think that the SORNA definition helps him? He argues that, if the SORNA definition applies, then that means other provisions in SORNA become relevant for determining the meaning of “sex offense.” For example, Ramirez Gomez observes that the term “sex offender,” as defined in
4.
Ramirez Gomez‘s other arguments fare no better. Moving away from the text of
Ramirez Gomez also invokes Hughey v. United States, 495 U.S. 411 (1990). There, the Supreme Court considered the Victim and Witness Protection Act of 1982. That statute authorized federal courts, when sentencing a defendant “conviсted” of an enumerated offense, to order “that the defendant make restitution to any victim of such offense.” Id. at 415–16 (quoting
Ramirez Gomez also discusses Terry v. United States, 593 U.S. 486 (2021). But that case has nothing to do with this one. Terry dealt with а portion of the First Step Act providing that a defendant could be eligible for a sentence reduction if he had previously received “a sentence for a covered offense.” Id. at 492 (quoting
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In sum, Ramirez Gomez‘s challenge to his sentencing enhancement fails. Courts may apply the enhancement described in
III.
Ramirez Gomez brings a second procedural challenge to his sentence. The district court ruled that Ramirez Gomez‘s 51-month sentence must be served consecutively—that is, in addition to—any prison sentence imposed in the Indiana state-court prosecution for the separate crimes of child sexual abuse. Ramirez Gomez says this was error in light of
Because Ramirez Gomez did not make this objection to the district court, he concedes that we review his challenge for plain error.
A.
The district court did not err, let alone plainly err, by imposing a consecutive sentence. To be sure, the guideline uses mandatory language.
In Setser v. United States, 566 U.S. 231 (2012), the Supreme Court answered the precise question before us now: “whether a district court . . . has authority to order that the federal sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Id. at 233. The Court held that district courts have “long been understood” to enjoy discretion to make a sentence either consecutive or concurrent. Id. at 236. And nothing in any federal law “foreclose[s] the exercise of district courts’ sentencing discretion in these circumstanсes.” Id. at 237.
That remains true today.
When exercising its discretion to impose a consecutive sentence, the district court must do two things. First, the court must “turn[] its attention to”
Second, the district court must explain why it departed from that guideline. This isn‘t a burdensome requirement. Indeed, the court need only “make[] generally clear the rationale under which it has imposed the consecutive sentence.” Id. at 335 (citation omitted).
The district court satisfied both those requirements here.
1.
First, the court “turned its attention to”
The district court‘s review of the presentence report clears the low bar set by our caselaw. In Hall, for example, the district court‘s discussion of the relevant guideline provision was limited to the following: “there is a reference to the guidelines about consecutive sentences. I believe we had discussed that in chambers.” 632 F.3d at 336. We held that this “indicate[d] that the district court considered
sentencing hearing, “there is some other evidence in the record that [the court] considered” that provision. Id.
What‘s more, the district court extensively explained why it was imposing a consecutive sentence—as discussed below.
2.
Second, the court explained its rationale for running the federal sentence consecutive to the anticipated sentence for Ramirez Gomez‘s child molestation charges in Marion County, Indiana. The record makes clear that the distriсt court imposed a consecutive sentence (1) to replace the upward variance it had been considering and (2) because the Indiana prosecution targeted conduct different from that which supported Ramirez Gomez‘s federal sentence.
First, the court imposed a consecutive sentence as a substitute for an upward variance. The court originally believed that “this is not a guideline case.” R. 51, Pg. ID 714. That means the court planned to impose a sentence in excess of the Guidelines-suggested range of 41 to 51 months. The court‘s view was that, “given [the defendant‘s] past convictions and the similarity of the conduct that he‘s engaging in now,” there was “some justification” for imposing an upward variance. Id. at Pg. ID 721. But the court didn‘t impose the upward variance, since “nobody [was] asking for” one. Id.
Why didn‘t the government ask for one, even though the government thought it “wouldn‘t be unreasonable for the United States to come up and argue for an upward variance“? Id. at Pg. ID 713. The government didn‘t ask for a variance “in consideration of the charges” that Ramirez Gomez faced in other jurisdictions. Id. Indeed, the government stated that a “top of the guideline sentence is appropriate” because, among other things, “[w]e don‘t know what‘s going to happen in Indiana.” Id. Likewise, defense counsel explained that Ramirez Gomez was “going to have to deal with the cаses in Marion County, Indiana,” among other things. Id. at Pg. ID 716. As these passages show, the district court imposed a consecutive sentence as a replacement for the upward variance it was originally planning. In the court‘s view, running the federal sentence consecutive to the anticipated Indiana sentence was necessary to ensure that Ramirez Gomez‘s sentence was adequate in the absence of an upward variance.
What‘s more, the district court did run one of Ramirez Gomez‘s anticipated state sentences—an anticipated Tennessee sentence for failing to register as a sex offender—concurrently to the federal sentence. Crucially, the court‘s explanаtion for why it ran that sentence concurrently reveals why the court ran the other anticipated sentences consecutively. As the court explained, that anticipated Tennessee prosecution covers the exact same conduct for which Ramirez Gomez was being sentenced in federal court: failing to register as a sex offender. Id. at Pg. ID 724 (stating that the Tennessee sex-offender-registry prosecution “looks like it‘s exactly the same as this, and he‘s being punished for it, and so I‘m going to run it concurrent“). Accordingly, the district court thought it would be unfair if Ramirez Gomez had to serve two separate prison sentences for the exact same conduct. Id.
By contrast, said the distriсt court, the other state sentences—including the anticipated Indiana sentence for sexually molesting children—reflected conduct that was different from the conduct that led to Ramirez Gomez‘s federal failure-to-register conviction. Id. (explaining that “all the other violations that were not related to this,” unlike the Tennessee sex-offender-registry prosecution described in Paragraph 63 of the Presentence Report, would be “run consecutive“). For that reason, the
Resisting this conclusion, Ramirez Gomez focuses on two comments. The court stated that “the Marion charges” (the Indiana charges for sexually abusing the children) had “kind of” already been “taken into account with the [eight-]level enhancement.” Id. at Pg. ID 714. The court also stated that a “a within [G]uideline sentence that is consecutive to any of the VOPs [violations of probation] would . . . probably be adequate.” Id. at Pg. ID 713. Ramirez Gomez observes that, in this comment, the district court mentioned only the probation violations; the court didn‘t say that the sentence would also need to run consecutive to the Indiana charges to be adequate. On the contrary, says Ramirez Gomez, the court thought the Indiana charges had already been “taken into aсcount.” Id. at Pg. ID 714.
But we disagree about the consequences of these comments. Whatever the district court meant by them, they don‘t override the ample record evidence showing that the district court considered, but rejected as inadequate, the possibility of running the federal sentence concurrent with the anticipated Indiana sentence.
In sum, the sentencing hearing reveals a clear picture: the district court originally felt that an upward variance was necessary to ensure an adequate sentence for Ramirez Gomez. It changed course only after concluding that a sentence consecutive to the Indiana charges and the parole violatiоns would serve the same function. The district court also observed that the anticipated Indiana sentence covered conduct different from the federal charges—unlike the anticipated Tennessee sentence, which the district court imposed concurrently. Thus, the district court adequately explained why it imposed Ramirez Gomez‘s federal sentence consecutive to his anticipated Indiana sentence.
B.
Finally, even if we did think the district court erred by not giving an adequate explanation (and we don‘t), the error wouldn‘t be plain. If Ramirez Gomez wanted a more robust explanation, then he should have raised his objection before the district court.
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Ramirez Gomez raped his own daughter, was deported, and then returned only to molest three more children. As the district court put it, Ramirez Gomez is a “complete predator on minor kids.” R. 51, Pg. ID 722. For the reasons set forth above, we reject Ramirez Gomez‘s challenges to his 51-month federal sentence for (a) failing to register as a sex offender and (b) illegally re-entering the United States as a previously deported alien.