US v. A. Ramirez-Ramirez

Filing 920081014

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4581 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTOLIN RAMIREZ-RAMIREZ, a/k/a Javier Ramirez-Ramirez, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00137) Submitted: September 30, 2008 Decided: October 14, 2008 Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Russell W. Mace, III, RUSSELL MACE & ASSOCIATES, PA, Myrtle Beach, South Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Adam Morris, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Antolin reentry, 8 U.S.C. Ramirez-Ramirez 1326(a), pled guilty and to illegal a (b)(2) (2000), received sentence of sixty-eight months imprisonment. He appeals his sentence, contending that the district court plainly erred in awarding two criminal history points for commission of the offense while under a sentence of probation, U.S. Sentencing Guidelines Manual 4A1.1(d) (2006). We affirm. Because Ramirez-Ramirez did not object to his criminal history calculation in the district court, review is for plain error. United States v. Olano, 507 U.S. 725, 732 (1993) (error which and was plain, affected the defendant's fairness, substantial or occurred, rights, "seriously affects integrity, public reputation of judicial proceedings"). Two criminal history points are prescribed under USSG 4A1.1(d) "if the defendant committed the instant offense while under any criminal justice sentence, including probation ." Application Note 4 explains that a "criminal . . . justice sentence" is any "sentence countable under 4A1.2 . . . having a custodial is Note or supervisory not 4 required component, for this that although item "[a] to active apply." who supervision Application further provides defendant commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation . . . violation 2 warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such warrant." See USSG 4A1.2(m) (same). Ramirez-Ramirez acknowledges that, in applying 4A1.1(d), the sentencing court need not consider whether an outstanding warrant is stale or whether state authorities were lax in executing the warrant. See United States v. Davis, 313 F.3d 1300, 1305-06 (11th Cir. 2002); United States v. Mateo, 271 F.3d 11, 16 (1st Cir. 2001); United States v. Anderson, 184 F.3d 479, 481 (5th Cir. 1999); United States v. Elmore, 108 F.3d 23, 27-28 (3d Cir. 1997); United States v. Camilo, 71 F.3d 984 (1st Cir. 1995). Ramirez-Ramirez observation in Camilo relies that an on the First delay Circuit's in the unreasonable execution of a warrant might give rise to a due process issue under 4A1.1(m), although not in Camilo's case, because he was responsible for the delay. Camilo, 71 F.3d at 988 & n.7. * The First Circuit later held that, "in determining whether to add criminal history points under USSG 4A1.1(d), a sentencing court ordinarily is not required to look beyond the face of the state-court record, but, rather, may give weight to an outstanding warrant without inquiring into the validity of that warrant." Mateo, 271 F.3d at 16 (noting that Camilo only "left open the question of whether defects in a state warrant process might be considered by the sentencing court"). * 3 Ramirez-Ramirez responsible against for argues the He that, in unlike the Camilo, of he the was not delay contends execution the warrant him. that 4A1.1(d) enhancement violated due process in his case because (1) he did not have an opportunity deported to have the warrant he set aside because his he was immediately after finished serving prison sentence; (2) he did not willfully fail to appear in court but was prevented by his incarceration on another charge; authorities issued another warrant when the (3) state warrant original expired while he was in prison; and (4) state authorities could have discovered his location in prison and executed the warrant. Because the district court was not required to consider the circumstances surrounding the warrant outstanding against Ramirez-Ramirez at the time of the instant offense, Ramirez-Ramirez has not identified any error on the part of the district court in adopting that recommendation in the presentence report. err, much less We conclude that the district court did not err, in determining Ramirez-Ramirez's plainly criminal history, and no due process violation occurred. We district facts therefore We affirm the with are sentence oral imposed by the the the court. legal dispense argument because in and contentions adequately presented 4 materials before the court and argument would not aid the decisional process. AFFIRMED 5

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