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Media Alerts - United States v. Ramirez - Fifth Circuit
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September 24, 2013
  United States v. Ramirez - Fifth Circuit
Headline: Fifth Circuit Rules that Certain Prior Misdemeanor Convictions Can Qualify as "Aggravated Felonies" in Calculating Sentence Enhancements.

Area of Law: Sentencing.

Issue Presented: Whether the defendant's prior state misdemeanor conviction for sexual abuse of a minor can qualify as an "aggravated felony" for purposes of enhancing his federal prison sentence.

Brief Summary: Efrain Hernandez Ramirez was convicted of illegal reentry following removal from the United States. During sentencing, questions arose regarding his prior state misdemeanor conviction for third-degree sexual abuse in 2004. The government argued that Ramirez's prior conviction should be classified as an aggravated felony. Ramirez objected to the classification of his prior conviction as an aggravated felony. The U.S. Court of Appeals for the Fifth Circuit held that the state criminal statute and the criminal information established that Ramirez's conviction was for the sexual abuse of a minor, which the relevant federal sentencing provision expressly includes within the definition of "aggravated felony." Thus Ramirez's prior conviction, though a misdemeanor under state law, qualified as an aggravated felony for calculating federal sentence enhancements.

Extended Summary: Efrain Hernandez Ramirez is a Mexican citizen who returned to the United States several months after his second removal from the country. The government indicted Ramirez in the U.S. District Court for the Northern District of Texas on October 10, 2012, on one count of illegal reentry following removal from the United States.

During sentencing, complications arose regarding Ramirez's prior misdemeanor conviction. In 2004, Ramirez had been convicted in New York for third-degree sexual abuse, a misdemeanor under state law. Ramirez's presentence report ("PSR") included this prior conviction in its calculation of his criminal history category, but it did not factor the conviction into his offense level. The government objected to the PSR, claiming that Ramirez's prior conviction should be classified as an "aggravated felony" within the meaning of the relevant sentencing provisions. Such a classification would increase his total offense level from six to fourteen, and the advisory guideline range would increase from between two and eight months' imprisonment to between twenty-one and twenty-seven months' imprisonment. Ramirez objected to the classification of his prior conviction as an aggravated felony. The district court imposed the enhanced sentence.

On appeal, the U.S. Court of Appeals for the Fifth Circuit first determined that Ramirez's prior conviction was for the sexual abuse of a minor. The court explained that the New York statute is divisible in the sense that it can be violated in several different ways. The court therefore applied the "modified categorical" approach, according to which it used the state criminal information to determine that the defendant violated the portion of the statute criminalizing sexual assaults on minors. The court then proceeded to explain that § 2L1.2 of the Federal Sentencing Guidelines and 8 U.S.C. § 1101(a)(43) define "aggravated felony" expressly to include "murder, rape, or sexual abuse of a minor." The defendant had, therefore, committed an aggravated felony for purposes of his federal sentence even though the offense was a misdemeanor as a matter of state law.

Ramirez claimed that the classification of his prior conviction as an aggravated felony was erroneous for three reasons: (1) the plain meaning and structure of the Federal Sentencing Guidelines indicate that a felony does not include a misdemeanor, (2) contradictory Fifth Circuit law should be limited in its application and is inapplicable to the case at hand, and (3) recent Supreme Court jurisprudence forbids the transformation of his misdemeanor into a felony. The court found Ramirez's arguments to be unpersuasive.

To Ramirez's first point, the court held that the plain meaning of the United States Code stated that murder, rape, or sexual abuse of a minor constitute aggravated felonies. The court stated that the term "aggravated felony" is a term of art that includes certain misdemeanors under state law and that circuit courts have generally held that a misdemeanor conviction can constitute an aggravated felony. To his second point, the court held that while the prior Fifth Circuit case of United States v. Urias-Escobar concerned a different portion of the definition of aggravated felony, the reasoning of the prior case applied here, as it showed that state misdemeanors could come within the federal definition. To his final point, the court held that the factual and legal issues presented in the Supreme Court cases of Carachuri-Rosendo v. Holder and Moncrieffe v. Holder are distinguishable and do not disturb the holding in Urias-Escobar. The court held that Carachuri-Rosendo was not applicable because there was no dispute that Ramirez had been convicted of an offense that the Federal Sentencing Guidelines or the United States Code define as an aggravated felony. The court similarly held that Moncrieffe was not applicable because Moncrieffe required the court to consult other statutes to determine the meaning of "drug trafficking," whereas the provision at issue in the instant case does not require references to additional statutes to determine the meaning of "sexual abuse of a minor."

For these reasons, the Fifth Circuit affirmed the decision of the district court.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...3/13-10473-CR0.wpd.pdf.

Panel: Chief Judge Stewart and Circuit Judges King and Prado.

Argument Date: 9/4/2013

Date of Issued Opinion: 9/23/2013

Docket Number: No. 13-10473

Decided: Affirmed

Case Alert Author: Yong Eoh

Counsel: Susan Cowger, U.S. Attorney's Office, for Plaintiff-Appellee United States of America; Jerry Van Beard and Laura S. Harper, Federal Public Defender's Office, for Defendant-Appellant Efrain Hernandez Ramirez

Author of Opinion: Judge King

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 09/24/2013 06:19 PM     5th Circuit  

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