USA v. Roberto Ramirez-Perez

Filing

OPINION and JUDGMENT filed: Sentence imposed upon defendant is AFFIRMED, decision for publication pursuant to local rule 206. Danny J. Boggs, Eugene E. Siler, Jr. (AUTHORING), Circuit Judges; Gregory F. Van Tatenhove, U.S. District Judge for the Eastern District of Kentucky.

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Document: 006110994348

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0162p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 10-1270
v.
>
,
ROBERTO RAMIREZ-PEREZ,
Defendant-Appellant. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 09-00271-001—Paul Lewis Maloney, Chief District Judge.

Decided and Filed: June 23, 2011
Before: BOGGS and SILER, Circuit Judges; VAN TATENHOVE, District Judge.*
_________________
COUNSEL
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant. Christopher M. O’Connor, ASSISTANT UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee.
_________________
OPINION
_________________
SILER, Circuit Judge. Defendant Roberto Ramirez-Perez pleaded guilty to
being present in the United States after having been previously deported subsequent to
an aggravated felony conviction. The district court enhanced Ramirez-Perez’s offense
level and criminal history score because it determined that he had a 1994 drug trafficking
conviction for which the sentence imposed exceeded 13 months. The district court then

*

The Honorable Gregory Van Tatenhove, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

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sentenced him to 70 months’ imprisonment. Ramirez-Perez now appeals, challenging
the district court’s determination that his prior conviction resulted in a sentence that
exceeded 13 months. For the reasons stated below, we AFFIRM.
I.
Ramirez-Perez is a native and citizen of Mexico. In 1994, he pleaded guilty in
a California court to unlawfully furnishing or selling a controlled substance. He was
sentenced to 220 days in jail and 3 years of probation. In 1998, he violated his probation
and was sentenced to 365 days and given 234 days of credit for time served.
From 1993 to 1998, Ramirez-Perez was deported or removed from the United
States four times. In 2009, he pleaded guilty to assault with a dangerous weapon. An
investigation revealed his prior deportations and his 1994 California conviction, which
qualified as an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43).
Ramirez-Perez later pleaded guilty to one count of being present in the United
States after having been previously deported subsequent to an aggravated felony
conviction, in violation of 8 U.S.C. § 1326(a) & (b)(2).
In sentencing, he had a total offense level of 21, and a three-point increase in his
criminal history score pursuant to § 4A1.1(a), resulting in a total criminal history score
of 11 (category V). These increases were based on a finding that the sentence for his
1994 conviction exceeded 13 months, which was determined by adding his initial
sentence of 220 days to his probation violation sentence of 365 days. Ramirez-Perez
objected to these calculations, arguing that his sentence was under 13 months because
the credit for time served should have been deducted from the length of his probation
violation sentence. The district court overruled his objection and calculated his
Guidelines range as 70 to 87 months. It then sentenced Ramirez-Perez to a term of
imprisonment of 70 months, followed by two years of supervised release.

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II.
Ramirez-Perez argues that the district court erred by finding his 1994 conviction
resulted in a sentence that exceeded 13 months. He contends his probation revocation
sentence of 365 days should be reduced by the 234 days of credit for time served he
received. Under this calculation, his criminal history category would remain at V, but
his offense level would have only increased by 12 for a total of 17, resulting in a
Guidelines range of 46-57 months.
This court reviews “a district court’s legal conclusions regarding the Sentencing
Guidelines de novo and a district court’s factual findings in applying the Sentencing
Guidelines for clear error.” United States v. Galvan, 453 F.3d 738, 739 (6th Cir. 2006)
(citation and internal quotation marks omitted).
The Guidelines provide for a 16-level increase in the defendant’s offense level
“[i]f the defendant previously was deported, or unlawfully remained in the United States,
after a conviction for a felony that is a drug trafficking offense for which the sentence
imposed exceeded 13 months.” USSG § 2L1.2(b)(1)(A)(i). The application notes state
that “[t]he length of the sentence of imprisonment includes any term of imprisonment
given upon revocation of probation.” USSG § 2L1.2, comment. (n.1).
The Guidelines also provide for a three-point increase in a defendant’s criminal
history score “for each prior sentence of imprisonment exceeding one year and one
month.” USSG § 4A1.1(a). In calculating the length of a sentence, the Guidelines
instruct to “add the original term of imprisonment to any term of imprisonment imposed
upon revocation.” USSG § 4A1.2(k)(1).
The term “sentence of imprisonment” has the same meaning under both the
offense level and criminal history guidelines. USSG § 2L1.2, comment. (n.1). It “means
a sentence of incarceration and refers to the maximum sentence imposed.” USSG
§ 4A1.2(b)(1). Application Note 2 explains “the length of a sentence of imprisonment
is the stated maximum . . . . That is, criminal history points are based on the sentence
pronounced, not the length of time actually served.” USSG § 4A1.2, comment. (n.2).

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In Galvan, we considered the effect of a defendant’s receiving credit for time
served for purposes of § 4A1.2(k)(1). 453 F.3d at 740-41. There, we rejected the
defendant’s argument that the district court should have reduced the aggregate sentence
of his prior conviction by the credit the state court gave him for time served while
awaiting sentencing. Id. at 741. In rejecting this argument, we held that “for the
purposes of Guidelines criminal history calculation, it matters not whether a defendant’s
sentence included credit for time served presentence.” Id. We also rejected the
defendant’s argument that the district court should have deducted the credit for time
served he received on an earlier probation violation because “nothing on the face of the
record indicate[d] any such credit, and the district court was not required to search
beyond the record.” Id. We did not address what the consequence would have been if
the defendant’s state court record had reflected that he received credit for his previous
probation violation sentence. Nonetheless, the Guidelines support the conclusion that
the general rule from Galvan—that “it matters not whether a defendant’s sentence
included credit for time served presentence”—should apply even if the credit for time
served is reflected on the state court record and based on the original sentence. Id.
The sentence of imprisonment for Guidelines purposes is “the sentence
pronounced, not the length of time actually served.” USSG § 4A1.2, comment. (n.2).
When a court gives credit for time served, it affects the length of time the defendant will
be required to serve. It does not, however, affect the sentence that is pronounced.
Moreover, the Guidelines refer to the “maximum sentence imposed” without
qualification as to credit for time served. USSG § 4A1.2(b)(1). Notably, the Guidelines
expressly exclude parts of a sentence in other circumstances. For instance, “[i]f part of
a sentence of imprisonment was suspended, ‘sentence of imprisonment’ refers only to
the portion that was not suspended.” USSG § 4A1.2(b)(2). No mention is made of
excluding credit received for time served. For these reasons, we conclude that the
general rule from Galvan applies in this case. 453 F.3d at 741. Credit for time served
should not be subtracted from a defendant’s probation revocation sentence, even if the
face of the state court record reflects the defendant received credit for time served on the
original offense.

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Therefore, because this sentence exceeded 13 months, the district court correctly
increased his offense level by 16 under § 2L1.2(b)(1)(A)(i), and his criminal history
score by three under § 4A1.1(a).
Ramirez-Perez relies on United States v. Glover, 154 F.3d 1291, 1295-96 (11th
Cir. 1998), in which the Eleventh Circuit came to a different conclusion on similar facts
because it was concerned that, by not deducting credit for time served on an earlier
probation violation, the earlier probation violation sentence would be counted twice.
Although the Glover court’s reasoning avoids a potentially harsh result, Glover does not
persuade us to depart from the general rule from Galvan. Under the Guidelines, it is the
sentence pronounced that is controlling, not the amount of time actually served. Id. at
1296 (Edmondson, J., dissenting) (citing § 4A1.2, comment. (n.2)).
Moreover, even if we were to follow Glover here, it is not entirely clear that all
of the 234 days of credit for time served came from Ramirez-Perez’s initial sentence.
The judgment states that credit for time served is “156 DAYS LOCAL” and “78 DAYS
PC 4019/2933.1”1 for “234 TOTAL DAYS CREDIT.” Although the source of this time
is reasonably apparent, the judgment does not specifically say that this credit for time
served came from the prior drug trafficking offense. Also, there is a discrepancy
between the earlier 220-day sentence and the later 234-day credit for time served. It is
conceivable that some of this credit for time served was the result of awaiting sentencing
on the probation violation, which even under Glover, is included as part of the sentence
of imprisonment. See 154 F.3d at 1296. Ascertaining the source of all of the credit for
time served from the judgment here would require some speculation, and the district
court is not required to search outside the record. See Galvan, 453 F.3d at 741.
Ramirez-Perez also argues that, to the extent this court finds § 4A1.2(k) to be
ambiguous, it should find in his favor based on the rule of lenity. He contends that there
is a “fundamental ambiguity” in the guideline because “term of imprisonment” is not
1

“PC 4019” refers to a California Penal Code provision that grants two days of time served for
every four days in custody. See Cal. Penal Code § 4019(f). It appears Ramirez-Perez was given 78 days
of credit for 156 days served in a local jail. Ramirez-Perez is thus asking the court to deduct credit for time
served that was given for credit for time served. His double counting argument may cut both ways.

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defined and it is unclear whether it has the same meaning as “sentence of imprisonment.”
A review of § 4A1.2(k) and its commentary shows that these terms are interchangeable.
This guideline instructs the court to “add the original term of imprisonment to any term
of imprisonment imposed upon revocation.” USSG § 4A1.2(k)(1) (emphasis added).
In the application note, it states that “the sentence given upon revocation should be
added to the original sentence of imprisonment.” USSG § 4A1.2(k)(1), comment. (n.11)
(emphasis added). “Term” and “sentence” are used interchangeably in this guideline.
Thus, there is no ambiguity and “the rule of lenity is not applicable.” United States v.
Johnson, 529 U.S. 53, 59 (2000).
AFFIRMED.