US v. Ramos-Diaz

Filing

OPINION issued by Jeffrey R. Howard, Chief Appellate Judge; Kermit V. Lipez, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Unpublished. [15-2466]

Case: 15-2466

Document: 00117189007

Page: 1

Date Filed: 08/14/2017

Entry ID: 6112801

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 15-2466
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTIAN RAMOS DIAZ,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]

Before
Howard, Chief Judge,
Lipez and Kayatta, Circuit Judges.

Juan A. Albino Gonzalez and Albino & Assoc. Law Office, PC on
brief for appellant.
Rosa Emilia Rodríguez-Vélez, United States Attorney, Mariana
E. Bauzá-Almonte, Assistant United States Attorney, Chief,
Appellate Division, and Thomas F. Klumper, Assistant United States
Attorney, on brief for appellee.

August 14, 2017

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LIPEZ, Circuit Judge.

Date Filed: 08/14/2017

Entry ID: 6112801

After he was captured by Puerto

Rico police with an automatic weapon in his possession, Christian
Ramos Diaz ("Ramos") pled guilty to one count of being a prohibited
person in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(3).

He was sentenced to 48 months of imprisonment, a

sentence that he claims is substantively unreasonable because it
is longer than the 30-month sentence received by his co-defendant.
Finding no error in his sentence, we affirm.
I.
On April 7, 2015, Puerto Rico Police Department agents
entering the El Prado Public Housing Project in Río Piedras, San
Juan

observed

("González"),
motorcycle.

Ramos,
and

co-defendant

another

Iván

individual

Daniel

González

standing

next

Ortiz
to

a

When one of the agents saw González pull a firearm

from his waistband, the agents approached the group and identified
themselves as police officers.

Ramos and González hopped onto the

motorcycle and fled, with Ramos driving.

The agents pursued them.

When they reached an area at the end of the housing project,
González dismounted from the motorcycle and threw his firearm and
a gun magazine over a fence into the backyard of an adjacent
residence.

He then returned to the motorcycle, where Ramos handed

him another firearm and another gun magazine.

González threw the

second gun and gun magazine over the fence, and then jumped over
the fence himself and ran toward the residence.

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Ramos continued

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to flee on the motorcycle toward an apartment in the housing
project, where the police found and arrested him.
The firearms, both Glock pistols, were recovered and
found to be machineguns, capable of firing more than one shot with
a single press of the trigger.

González's gun contained 21 rounds

of ammunition, while Ramos's contained 19 rounds, and each gun
magazine contained an additional 15 rounds.

During an interview

after his arrest, Ramos stated that he was a habitual user of
marijuana, smoking it seven to eight times per day.
Ramos was charged with one count of possession of a
firearm by a prohibited person -- an unlawful user of a controlled
substance -- in violation of 18 U.S.C. § 922(g)(3).

In the same

indictment González was charged with illegal possession of a
machinegun, in violation of 18 U.S.C. § 922(o).
guilty to their respective charges.

Both men pled

González, who had no criminal

record, was sentenced to 30 months of imprisonment.
had

several

prior

juvenile

convictions,

entered

Ramos, who
into

a

plea

agreement with the government recommending a sentence equal to the
low end of the applicable Guidelines sentencing range ("GSR").
Ramos was sentenced to 48 months, a variance of 15 months over the
upper bound of the applicable GSR.

1

This appeal followed.1

Although Ramos's plea agreement contained an appeal waiver,
the waiver was conditioned on Ramos being sentenced in accordance
with the parties' sentencing recommendation. Because the district
court did not adopt that recommendation, both parties agree that
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II.
We review the district court's sentencing decision for
abuse of discretion.

Gall v. United States, 552 U.S. 38, 51

(2007).
Ramos challenges the substantive reasonableness of his
sentence, arguing that, by imposing a longer sentence on him than
on

his

co-defendant,

the

district

court

failed

"to

avoid

unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct."2
§

3553(a)(6).

Given

Ramos's

criminal

history,

18 U.S.C.

however,

the

district court found that Ramos and González were not similarly
situated, and therefore § 3553(a)(6) did not apply.

Indeed, it is

well established in this circuit that differences in criminal
history can justify sentencing co-defendants differently.

See

United States v. Ortiz–Islas, 829 F.3d 19, 29 (1st Cir. 2016).
Ramos

responds

that,

notwithstanding

his

criminal

history, at the end of the day he and González are similarly

the waiver does not bar this appeal.
See United States v.
Fernández-Cabrera, 625 F.3d 48, 51 (1st Cir. 2010) ("When the
district court chose not to follow the parties' joint sentencing
recommendation, the waiver-of-appeal provision, as framed, was
relegated to the scrap heap.").
2

Although Ramos's brief hints at a challenge to the
procedural reasonableness of his sentence, he makes no developed
argument on that point and hence it is waived. See United States
v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.").

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situated, but for different reasons.

Entry ID: 6112801

Focusing on his offense

conduct and that of his co-defendant, Ramos asserts that because
González threw both men's guns and ammunition over the fence,
González's offense conduct was worse than his. Thus, Ramos claims,
his lesser offense conduct balances out his greater criminal
history, and therefore he should have received the same sentence
as González.3
The

district

court

rejected

this

argument

at

the

sentencing hearing, finding no meaningful difference between the
defendants' offense conduct.

The court pointed out that, although

González threw the guns over the fence, Ramos had passed one of
the guns to González before González threw them.

Moreover, the

court noted, Ramos was "the one in charge of driving the vehicle
that they used to flee," and González threw Ramos's gun over the
fence because Ramos could not "at the same time start throwing
things over a fence while driving a motorcycle."

Sensibly, the

district court did not, therefore, credit Ramos's argument that
his offense conduct was less serious than the conduct of his codefendant.

Accordingly,

after

3

considering

Ramos's

greater

In support, Ramos cites United States v. Reyes-Santiago, a
case in which we found an unwarranted disparity under § 3553(a)(6)
between the sentence of the defendant and those of his codefendants. See 804 F.3d 453, 472-73 (1st Cir. 2015). That case,
however, is readily distinguishable, given that it involved a
Sentencing Guidelines factor -- drug quantity -- that was
applicable to all of the defendants and was applied uniquely
harshly to the appellant. Id. at 468.

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criminal

history

and

Page: 6

equivalent

Date Filed: 08/14/2017

conduct,

the

court

Entry ID: 6112801

found

it

appropriate to impose a longer sentence on Ramos than on González.
The court acted well within its discretion in reaching that
conclusion.
Affirmed.

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