Nov. 17, 2022 – The U.S. Court of Appeals for the Seventh Circuit has declined to revisit its holding in a 2020 case that resolved a sentencing guideline issue which is the subject of a circuit split.   

In U.S. v. Ramirez, No. 21-2587 (Nov. 8, 2022), the Seventh Circuit Court of Appeals held that the defendant failed to meet the three-factor standard for overruling a decision involving an issue on which the circuits are split. 

Drug, Gun Charges

In May 2021, a federal grand jury indicted Christopher Ramirez on possessing 50 grams or more of methamphetamine with intent to distribute; being a felon in possession of a firearm; and distributing methamphetamine and fentanyl.

Under the terms of a plea deal, Ramirez pled guilty to the possessing with intent to distribute charge, and the government dismissed the other charges.

The U.S. Probation Office filed a pre-sentence investigation report (PSR). The PSR discussed how Ramirez’s grandmother raised him. She dealt drugs and didn’t make Ramirez go to school. According to the PSR, Ramirez spent his childhood “in nearly constant survival mode” and had “a first row seat to the world of drug dealing.”

Under the PSR, prior felony drug convictions in Wisconsin qualified Ramirez as a career offender, increasing his offense level under the federal sentencing guidelines.

District Court Cites Defendant’s Age

At his sentencing hearing before the U.S. District Court for the Eastern District of Wisconsin, Ramirez asked for leniency because of his childhood.

In sentencing Ramirez to 10 years in prison and eight years of supervision, the district court noted the sincerity of Ramirez’s allocution and stated that it “took at face value” Ramirez’s description of his childhood.

However, the district court pointed out that Ramirez was 39 years old and had endured multiple terms of probation and treatment.

“At this point in his life with his kind of a record at age 39, I think he’s going to have to show by his behavior that he’s serious about this rather than the Court assume that there’s going to be a change and give him a sentence that assumes that change when it hasn’t been forthcoming in the last some, what, 20 years,” the district court said.

Ramirez appealed his sentence.

Revisit Ruth?

Ramirez argued that the Seventh Circuit Court of Appeals should revisit its decision in U.S. v. Ruth, 966 F.3d 642 (7^th Cir. 2020).

In Ruth, the Seventh Circuit Court of Appeals held that defendant’s prior drug conviction under Illinois state law constituted a “controlled substance offense” for purposes off the career-offender sentencing guideline, even though the state law’s definition of “cocaine” was broader than the definition in the federal Controlled Substances Act (CSA).

Writing for a three-judge panel, Judge Kenneth Ripple pointed out that the Seventh Circuit Court of Appeals had declined to overrule Ruth in two opinions handed down in 2021.

Ripple explained that under Seventh Circuit Court of Appeals precedent, overruling an opinion is justified only when:

• the circuit is an outlier and eliminating a conflict can save work for Congress and the U.S. Supreme Court;

• the overruling might provide a new line of argument that would lead other circuits to change their positions; and

• prevailing doctrine creates a substantial injury.

Ramirez argued that Ruth both 1) made the Seventh Circuit Court of Appeals an outlier, and that overruling it would save work for Congress and the U.S. Supreme Court; and 2) caused him a substantial injury.

Split in Circuits

Judge Ripple acknowledged that the federal circuit courts are split on the issue of whether a controlled substance offense counts under the relevant federal sentencing guideline only if it involves a substance listed in CSA.

But he pointed out that the Seventh Circuit Court of Appeals was not an outlier, because in the wake of the Ruth decision the Fourth, Eighth, and Tenth Circuit Courts of Appeal had come to the same conclusion as Seventh Circuit Court of Appeals on the issue.

Ramirez argued the Seventh Circuit Court of Appeals was an outlier, because of a statement in Ruth that it was not “joining a side” of a split but was instead applying related case law.

That argument was unpersuasive, Judge Ripple concluded.

“Our decision not to respond directly to the reasoning of courts on the other side of the split in Ruth has no bearing on whether our position is that of an outlier,” Ripple wrote.

Judge Ripple reasoned that Ramirez was injured because his sentence was harsher than it would have been in a circuit on the other side of the issue, but was not the type of injury envisioned under Seventh Circuit Court of Appeals precedent as a factor in deciding whether to overrule a decision.

After all, Ripple wrote, “As the Government suggests, until the conflicting views of the circuits are reconciled, ‘it could just as easily be argued that undercounting career offenders works a substantial injury by failing to protect the public from recidivist drug criminals.’”

Consequently, Ramirez failed to meet the standard for overruling Ruth, Judge Ripple concluded.

Defendant’s Age Was Relevant

Ramirez also argued that the district court failed to give adequate and meaningful consideration to his arguments about mitigating factors.

Specifically, Ramirez argued that the district court: 1) failed to adequately consider his history of pervasive childhood trauma; and 2) lacked a basis for concluding that given Ramirez’s age, focusing on his childhood wasn’t justified.

Judge Ripple concluded that neither argument was persuasive.

“As we noted earlier … the district court did address, explicitly and extensively, Mr. Ramirez’s principal mitigating argument about his upbringing, including in reference to the factors and goals of sentencing,” Judge Ripple wrote.

With regard to the district court’s mention of Ramirez’s age, Ripple wrote that “the district court’s statement simply makes the point that over the course of his long criminal history, Mr. Ramirez had received probationary sentences and not many long prison sentences.”

“Despite this leniency, he had not changed the course of his life,” Judge Ripple wrote. “The district court deemed this factor to be relevant to an estimation of Mr. Ramirez’s ability and willingness to change his ways.”