United States v. Ramirez

16 F.4th 844

UNITED STATES of America, Plaintiff-Appellee,

v.Francisco Joseph ARCILA RAMIREZ, Defendant-Appellant.

No. 20-10564

United States Court of Appeals, Eleventh Circuit.

Filed: November 1, 2021

Randy Alan Hummel, Emily M. Smachetti, U.S. Attorney's Office, Andrea G. Hoffman, U.S. Attorney Service-Southern District of Florida, U.S. Attorney Service-SFL, Miami, FL, for Plaintiff-Appellee.

Ana M. Davide, Ana M. Davide, PA, Francisco Joseph Arcila Ramirez, Federal Detention Center-Inmate Legal Mail, Miami, FL, for Defendant-Appellant.

Before Wilson, Rosenbaum, and Hull, Circuit Judges.

HULL, Circuit Judge:

After pleading guilty, Francisco Arcila Ramirez ("Arcila Ramirez") appeals his 240-month sentence for providing material support to a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). Arcila Ramirez challenges the district court's imposition of the terrorism enhancement under U.S.S.G. § 3A1.4. After review and oral argument, we conclude that the district court failed to make the required fact findings for the terrorism enhancement; thus, we vacate Arcila Ramirez's sentence and remand.

I. BACKGROUND FACTS

A. Offense Conduct

Colombian law enforcement were investigating how illicit firearms and ammunition were smuggled into Colombia and distributed to guerrilla paramilitary groups. A Colombian weapons trafficker began cooperating as a confidential source ("CI").

The CI met Arcila Ramirez, a Colombian national who was a legal resident of the United States. Arcila Ramirez and the CI discussed the demand for AK-47 style weapons in Colombia. Residing in Southern Florida, Arcila Ramirez enlisted "straw" purchasers to buy those types of firearms, which he would smuggle into Colombia.¹

From December 2017 to August 2018, Arcila Ramirez obtained approximately 45 firearms using straw purchasers in Florida and sold them throughout Colombia. Arcila Ramirez knowingly sold six of those firearms to the National Liberation Army ("ELN"), a Marxist-Leninist insurgent group that the U.S. State Department has designated a foreign terrorist organization.

The ELN historically focused on attacking economic infrastructure, including oil and gas pipelines and electricity pylons. While the Colombian government has successfully engaged in peace negotiations with other guerrilla groups, the ELN has remained opposed to any ceasefire and has increased its guerrilla attacks, including bombings of police stations. The ELN also engages in narcotics trafficking, extortion of companies, and kidnappings for ransom to fund its operations.

In September 2018, U.S. law enforcement detected a pattern of repetitive firearms purchases by two of Arcila Ramirez's straw purchasers. The ensuing investigation revealed that between April and August of 2018, Arcila Ramirez had paid the straw purchasers to buy firearms from multiple federal firearm licensees under false pretenses and Arcila Ramirez then exported those firearms to Colombia for resale.

On August 16, 2018, one straw purchaser bought six AK-style pistols for Arcila Ramirez in Southern Florida. On August 24, 2018, Arcila Ramirez spoke with the CI in a recorded telephone call. Speaking in code, the CI told Arcila Ramirez that the ELN was "restless," and Arcila Ramirez responded that he had "already made the purchase" and had also bought 100 magazines of ammunition. The CI said the ELN had him "flustered" for the ammunition magazines, to which Arcila Ramirez replied, "I'll help you out, I'll help you out." Later, Arcila Ramirez concealed the six firearms in air compressors and shipped them and 100 magazines of AK-47 ammunition to Barranquilla, Colombia.

On August 31, 2018, Arcila Ramirez flew to Colombia to broker the weapons shipment with the CI and a known weapons broker for the ELN. On September 5, 2018, Arcila Ramirez and the CI met with the ELN weapons broker and discussed the sale of the six AK-style pistols, which were the weapon of choice for high-ranking ELN personnel. The ELN weapons broker paid for the six pistols and told Arcila Ramirez that he wanted to buy all weapons and components Arcila Ramirez could bring to Colombia.

On September 7, 2018, while under surveillance, Arcila Ramirez and the CI met at a storage location in Barranquilla, loaded the air compressors onto a truck, and took them to a location where they were cut open to retrieve the six pistols, the 100 ammunition magazines, and 32 AR-15 semi-automatic "uppers." Unbeknownst to Arcila Ramirez, two of the AK-style pistols contained hidden GPS trackers.

On September 10, 2018, again under surveillance, the pistols were driven to a rendezvous location with the ELN weapons broker in an area controlled by the ELN. The ELN weapons broker directed that the pistols be taken to a farmhouse in a rural area. The next day, the pistols were delivered to the ELN at the farmhouse. That same day, Arcila Ramirez flew back to Miami with $26,567, which he declared at the airport as attributable to his selling cars in Colombia.

After returning to Florida, Arcila Ramirez focused on obtaining larger quantities of firearm components, such as triggers and rifle barrels, to bring to Colombia for assembly because parts were cheaper to buy, easier to smuggle, and did not require straw purchasers. In a recorded telephone call on September 16, 2018, the CI told Arcila Ramirez that the ELN had told him "everything is fine" and to assist Arcila Ramirez. They discussed weapons parts and what Arcila Ramirez had already purchased. The CI told Arcila Ramirez the ELN wanted the parts "as soon as possible."

After purchasing more air compressors, Arcila Ramirez flew to Cartagena, Colombia on October 17, 2018 and met with the CI. Arcila Ramirez took money from the CI and paid the fee to release the shipping container with the air compressors. The shipment was then split up between Arcila Ramirez's brother and a friend. Two weeks later, Colombian National Police arrested the brother and the friend and seized numerous firearm parts, ammunition magazines, and the air compressors.

B. Arrest

On January 11, 2019, Arcila Ramirez was arrested in the United States. Arcila Ramirez waived his Miranda rights and admitted to using straw purchasers to buy firearms on his behalf, deliberately concealing those firearms in the air compressors, and smuggling the firearms into Colombia for resale. Arcila Ramirez admitted that the firearms had "to be for guerillas or delinquents," noting that the "ELN is over there." Arcila Ramirez explained that it was better for the guerillas to get firearm parts because they were cheaper. Arcila Ramirez admitted that he was participating in sending weapons to Colombia, but said he was not part of or involved with a group.²

C. Indictment and Guilty Plea

A superseding indictment charged Arcila Ramirez with: (1) conspiring to illegally deal firearms in violation of 18 U.S.C. § 922(a)(1)(A), and transport them to foreign customers in Colombia, all in violation of 18 U.S.C. § 371 (Count One); (2) four counts of making false statements in connection with the acquisition of firearms, in violation of 18 U.S.C. §§ 922(a)(6) and 2 (Counts Two through Five); (3) dealing in firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 2 (Count Six); (4) conspiring to provide material support to the ELN, a foreign terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1) (Count Seven); and (5) knowingly providing material support to the ELN, a foreign terrorist organization, in violation of 18 U.S.C. §§ 2339B(a)(1) and 2 (Count Eight).

Pursuant to a plea agreement, Arcila Ramirez pled guilty to Count Eight, the substantive material support offense. Count Eight alleged that from August 2018 to January 2019, Arcila Ramirez knowingly provided material support, including property, weapons, firearm parts and components, and services, to the ELN, while knowing that the ELN was a designated foreign terrorist organization and that the ELN engages in and had engaged in terrorist activity and terrorism.

In exchange for the plea, the government agreed to dismiss the remaining seven counts and to recommend a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a)-(b). The plea agreement advised that the government planned to seek a terrorism enhancement under U.S.S.G. § 3A1.4 and that Arcila Ramirez was free to challenge the terrorism enhancement.³

Arcila Ramirez agreed to the government's factual proffer, which stipulated, inter alia , that: (1) from August 2018 to January 2019, Arcila Ramirez knowingly provided material support to the ELN, knowing that the ELN engaged in, or engages in, terrorist activity or terrorism; (2) on August 31, 2018, Arcila Ramirez flew to Colombia to negotiate the sale of six AK-style firearms with a conspirator he knew at that time "was a weapons broker for the ELN and other criminal and paramilitary groups"; and (3) at their September 5, 2018 meeting, Arcila Ramirez agreed to sell the six firearms to the conspirator "for the ELN" and to selling him additional firearms in the future.

D. Sentencing

A presentence investigation report ("PSI") recommended an adjusted offense level of 39, using: (1) a base offense level of 26 under U.S.S.G. § 2M5.3(a) ; (2) a two-level increase under § 2M5.3(b)(1)(A)-(B) because the offense involved the provision of firearms; (3) a two-level increase under § 3B1.1(c) because Arcila Ramirez was an organizer or leader; (4) a 12-level increase under § 3A1.4(a) because his offense "involved," or "was intended to promote," a "federal crime of terrorism"; and (5) a three-level decrease under § 3E1.1(a)-(b) for acceptance of responsibility. The § 3A1.4 terrorism enhancement increased Arcila Ramirez's criminal history category from I to VI. See U.S.S.G. § 3A1.4(a)-(b).

His total offense level of 39 and criminal history category of VI yielded an advisory guidelines range of 360 months to life imprisonment. The statutory maximum for Arcila Ramirez's § 2339B(a)(1) conviction...