United States v. Marco Alfonso Ramirez

Ramirez’ appeal presents this important constitutional question: Does the Fifth Amendment require that a prosecution for a misdemeanor be initiated by indictment when the defendant can be sentenced under the Federal Youth Corrections Act ( 18 U.S.C. § 5010 (b))? We hold that a defendant who is potentially subject to the extended confinement prescribed by the Youth Corrections Act is thus subject to *910 “infamous punishment” for which an indictment is required by the Fifth Amendment.

Ramirez was charged, by information, with possession of a controlled substance in violation of 21 U.S.C. § 844 . He was found guilty and placed on probation. His probation was revoked after he admitted violating the conditions of the probationary order, and he was sentenced to an indeterminate term under section 5010(b) of the Youth Corrections Act (“YCA”). The YCA provides that the Youth Division of the Board of Parole may conditionally release a section 5010(b) youth offender at any time, that the Division must conditionally release him within four years of the date of conviction, and that it must unconditionally release him within six years of the conviction date. 1 ( 18 U.S.C. § 5017 (a), (c).)…

ON REHEARING

The Government’s petition for rehearing is granted.

The Government’s petition for rehearing discloses for the first time the fact that criminal proceedings against Ramirez were initially instituted by indictment, and not by information as represented by both parties in briefs and oral arguments anteceding our prior opinion. 1 After our opinion came down, the Government sought and was granted leave to augment the record to accompany its rehearing petition to show the procedural history of the case. The supplemental record reveals that Ramirez was first indicted on November 28,1973, for unlawful importation of marihuana, possession of marihuana with intent to distribute, and smuggling marihuana in violation of 21 U.S.C. §§ 841 (a)(1), 952, 960, and 963, and 18 U.S.C. § 545 — all felonies. On February 20, 1974, the Government filed a superseding criminal information charging Ramirez with unlawful knowing possession of 55 pounds of marihuana in violation of 21 U.S.C. § 844 , a misdemeanor. No objection of any kind was made to this procedure. Instead, Ramirez waived a jury, and the case was tried to the court on stipulated facts. 2 When Ramirez appeared for sentencing,…

556 F.2d 909 UNITED STATES of America, Plaintiff-Appellee, v. Marco Alfonso RAMIREZ, Defendant-Appellant. No. 75-1395. United States Court of Appeals, Ninth Circuit. Sept. 16, 1976. On Rehearing July 5, 1977. Frank J. Ragen, Deputy Federal Defender, San Diego, Cal., submitted on briefs for defendant-appellant. Marco Alfonso Ramirez, c/o Frank J. Ragen, Deputy Federal Defender, San Diego, Cal., pro se. Douglas G. Hendricks, Asst. U.S. Atty., San Diego, Cal., on the brief, Harry D. Steward, U.S. Atty., James W. Meyers, Asst. U.S. Atty., San Diego, Cal., argued, Stephen V. Petix, Asst. U.S. Atty., San Diego, Cal., on petition for rehearing, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before CHAMBERS, ELY and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 Ramirez' appeal presents this important constitutional question: Does the Fifth Amendment require that a prosecution for a misdemeanor be initiated by indictment when the defendant can be sentenced under the Federal Youth Corrections Act ( 18 U.S.C. § 5010 (b))? We hold that a defendant who is potentially subject to the extended confinement prescribed by…