United States v. Ramos

979 F.3d 994

UNITED STATES of America, Appellee,

v.Betsy RAMOS, Defendant-Appellant.

No. 19-4373

August Term 2020

United States Court of Appeals, Second Circuit.

Argued: September 14, 2020

Decided: November 12, 2020

Ronald L. Kuby (Rhidaya S. Trivedi, on the brief), Law Office of Ronald L. Kuby, New York, NY, for Defendant-Appellant.

M. Kristin Mace (Kevin Trowel, on the brief), Assistant United States Attorneys, for Seth D. DuCharme, Acting United States Attorney for the Eastern District of New York, New York, NY, for Appellee.

Before: Lynch, Sullivan, and Park, Circuit Judges.

Richard J. Sullivan, Circuit Judge:

This appeal requires us to decide whether, in grading a violation of supervised release under U.S. Sentencing Guideline § 7B1.1(a), it is appropriate for a district court to consider a state law recidivism enhancement to determine that the violation involved an offense "punishable by a term of imprisonment exceeding twenty years." U.S.S.G. § 7B1.1(a)(1)(B). We hold that it is, and that the district court did not otherwise commit a procedural error in sentencing the defendant, Betsy Ramos, to a two-year term of imprisonment.

I. Background

Ramos's extensive criminal history began in 1986 when, at the age of twenty-one, she sold a small amount of cocaine to an undercover law enforcement officer. One year later, Ramos was again convicted of selling narcotics to an undercover police officer – this time, heroin. The following year, she was arrested for yet another drug sale, resulting in her third narcotics conviction in as many years and a sentence of two-and-a-half to five years’ incarceration.

Almost immediately after her release from prison, Ramos returned to a life of crime. On March 21, 1993 – while still on probation – Ramos arrived at John F. Kennedy International Airport aboard a flight from Bogotá, Colombia. During a routine Customs inspection, it was revealed that Ramos and a coconspirator were acting as drug mules, having ingested dozens of balloons filled with more than 818 grams of heroin.

Four months after her arrest, and facing between five and forty years behind bars, Ramos pleaded guilty, pursuant to a cooperation agreement with the government, to importing heroin into the United States. Given both the severity of her crime and her extensive criminal history – which rendered her a Career Offender – the district court calculated Ramos's Guidelines range to be 151 to 188 months’ imprisonment.¹ Nevertheless, in light of Ramos's cooperation and personal history, the court determined that a substantial downward departure was warranted, and ultimately sentenced Ramos to only 36 months’ imprisonment, to be followed by a 10-year term of supervised release.

In 1995, just weeks after moving from prison to a halfway house, Ramos learned that she was HIV positive. Following that diagnosis, she slipped back into old patterns and began abusing drugs. It was around that time that Ramos became romantically involved with Joseph Serrano.

As Ramos tells it, "[t]heir relationship was fraught from the beginning." Ramos Br. at 7. Not only was Serrano a drug user himself, but he was also verbally and physically abusive to Ramos. And because Serrano was a convicted felon, associating with him put Ramos in violation of her conditions of supervision – a fact which her probation officer warned her about. Ramos nevertheless stayed with Serrano and even allowed him to move in with her.

On May 26, 1998, two New York City police officers, Anthony Mosomillo and Miriam Torres, went to Ramos's residence to execute a bench warrant for Serrano's arrest. Ramos lied to the officers and told them that she had not seen Serrano in some time. The officers left, but quickly returned after learning from Ramos's neighbor that there was a trap door in the floor of Ramos's apartment. Sure enough, upon searching her home, the officers located Serrano hiding in that hidden compartment.

After ordering Serrano to step out of the hole, the officers attempted to arrest him. Serrano refused, and after struggling with the officers, managed to get hold of Officer Torres's service weapon. At that point, Serrano and Officer Mosomillo exchanged gunfire, which resulted in the deaths of both men.

The following year, Ramos was tried for her role in Officer Mosomillo's death and was ultimately convicted of second-degree manslaughter – otherwise known as reckless manslaughter – pursuant to New York Penal Law § 125.15. Although the sentence for a class C felony such as second-degree manslaughter typically cannot exceed 15 years’ imprisonment, N.Y. PENAL LAW § 70.00(2)(c) ; see also People v. Lewie , 17 N.Y.3d 348, 356, 929 N.Y.S.2d 522, 953 N.E.2d 760 (2011), Ramos's past narcotics convictions rendered her a "persistent felony offender," meaning that she was eligible for a sentence of up to life imprisonment, N.Y. PENAL LAW §§ 70.00(2)(a), 70.10. Ramos was ultimately sentenced to fifteen years to life imprisonment.

More than twenty years later, on December 10, 2019, Ramos was released from state prison and immediately transferred to federal custody, where she was presented on a violation of the terms of her supervised release stemming from the May 1998 shooting. In connection with the federal violation, the U.S. Probation Department determined that Ramos's state offense constituted a "Grade A" violation as defined by U.S.S.G. § 7B1.1(a)(1), and concluded that the applicable Guidelines range was 33 to 41 months’ imprisonment. But, as the original offense of conviction was a class C felony, the maximum allowable sentence for the violation was determined to be 24 months. Ramos promptly admitted to the specified violation, and, ten days later, the parties reconvened before the district court for sentencing.

At the sentencing hearing, several friends and family members of Officer Mosomillo appeared and asked to testify about Ramos's role in the shooting and its impact on their lives. Although the district court permitted their testimony, the court explained that its "role ... [wa]s not to sentence Ms. Ramos for" the death of Officer Mosomillo, but to sentence her for the "breach of trust" associated with the violation of her supervised release. App'x at 18–19. For her part, Ramos focused on the significant amount of time she had already spent in custody, her rehabilitation, and the difficult circumstances in her life, including the abuse she suffered at the hands of Serrano. Notably, Ramos did not dispute Probation's Guidelines calculations.

Ultimately, the district court adopted Probation's violation report without change, including its proposed Guidelines range, and sentenced Ramos to the maximum permitted term – 24 months’ incarceration. In reaching that determination, the district court indicated that it considered each of the 18 U.S.C. § 3553(a) factors, and expressly mentioned, among other things, (i) that Ramos squandered the chance to turn her life around following an exceedingly lenient sentence in 1994, (ii) that Ramos was headed down "a disastrous path" "even before she met Mr. Serrano," App'x at 76, (iii) the "extremely serious" nature of Ramos's violation, id. , (iv) a recent disciplinary infraction that Ramos incurred while detained pending her sentencing before the district court, and (v) Ramos's declining health.

Ramos now appeals that sentence, arguing that the district court committed several procedural errors. She also requests that, in the event of vacatur and remand, her case be reassigned to a different judge for resentencing.

II. Standard of Review

Like any other sentence, we review a sentence for a violation of supervised release for both procedural and substantive reasonableness. See United States v. Smith , 949 F.3d 60, 65–66 (2d Cir. 2020). This means that we check the sentence to ensure both that the district court followed the right steps in imposing it, and that the sentence is not unreasonably harsh or unreasonably lenient. See United States v. Chu , 714 F.3d 742, 746 (2d Cir. 2013).

In conducting that review, we ordinarily apply a lenient "abuse-of-discretion standard." Smith , 949 F.3d at 66 (internal quotation marks omitted). That standard requires us to "take into account the totality of the circumstances, giving due deference to the sentencing judge's exercise of discretion, and bearing in mind the institutional advantages of district courts." Chu , 714 F.3d at 746 (internal quotation marks omitted).

But things change when a defendant raises an objection on appeal that she failed to raise below. In that circumstance, we review the sentence only for plain error. See Smith , 949 F.3d at 66. To meet the plain error standard, a defendant must establish four elements: "(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the appellant's substantial rights; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Balde , 943 F.3d 73, 96 (2d Cir. 2019) (internal quotation marks omitted).²

III. Discussion

Although Ramos does not challenge the substantive length of her sentence, she argues that the district court conducted the sentencing proceeding in a procedurally unreasonable manner.

"A sentence is procedurally unreasonable if the district court fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the § 3553(a) factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain the chosen sentence." Smith , 949 F.3d at 66 (internal quotation marks omitted). Ramos identifies what she believes to be two such errors. First, she claims, for the first time on appeal, that the district court improperly calculated her Sentencing Guidelines range. Second, she argues that in determining what sentence would be appropriate, the district court based its decision on erroneous facts and unreasonably...