United States v. Giovanni Ramirez

Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge CYNTHIA HOLCOMB HALL.

OPINION

This appeal presents the issue of whether a temporary detention ordered by the California Youth Authority Youth Offender Parole Board may be treated as either a prior sentence or a constructive parole revocation for the purpose of calculating criminal history points under the Sentencing Guidelines (“Guidelines”). Appellee Giovanni Ramirez pleaded guilty to a Class A felony with a statutory minimum sentence of 10 years. The District Court found that Ramirez’s two prior temporary detentions, which were ordered by the Youth Offender Parole Board as a result of *796 alleged parole violations, were neither pri- or sentences under U.S. Sentencing Guidelines Manual § 4Al.l(c) (2002) [hereinafter U.S.S.G.], nor terms of imprisonment imposed as a result of a revocation of parole that could be aggregated with Ramirez’s juvenile sentence under U.S.S.G. § 4A1.2(k) (2002). As a result, the District Court determined that Ramirez had no criminal history points and was eligible for a “safety-valve” departure from the mandatory minimum under U.S.S.G. § 5C1.2 (2002).

We have jurisdiction…

concurring in part and dissenting in part.

I join the court’s opinion with the exception of Part III(B). I respectfully dissent from the majority’s conclusion that Ramirez’s parole for his 1989 rape conviction was not “revoked,” as that term is understood. in U.S.S.G. § 4A1.2(k). I find two serious flaws in the majority opinion. First, the majority’s definition, relying almost entirely on state law, is irreconcilable with one of the primary purposes of the Sentencing Guidelines, “avoiding unwarranted sentencing disparities among defendants with similar records.” 28 U.S.C. § 991 (b)(B). Second, the way the majority defines a “revocation of ... parole,” under U.S.S.G. § 4A1.2(k), is inconsistent with the fundamental purposes and policies of chapter 4 of the Sentencing Guidelines.

The majority correctly states that the purpose of creating a uniform federal definition of terms within the Guidelines is to effectuate consistent nationwide application of federal legislation. Taylor v. United States, 495 U.S. 575, 591 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990). I agree with the majority’s implicit proposition that this purpose should not necessarily deter us from defining a statute in a…

347 F.3d 792 UNITED STATES of America, Plaintiff-Appellant, v. Giovanni RAMIREZ, Defendant-Appellee. No. 02-50018. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 3, 2003 — Pasadena, California. Filed October 24, 2003. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Judith A. Heinz, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellant. C.R. McReynolds (argued), Charles T. Matthews, Pasadena, California, for defendant-appellee. Appeal from the United States District Court for the Central District of California; William Matthew Byrne, Senior Judge, Presiding. D.C. No. CR-00-00522-WMB. Before: Warren J. Ferguson, Cynthia Holcomb Hall, and Marsha S. Berzon, Circuit Judges. Opinion by Judge FERGUSON; Partial Concurrence and Partial Dissent by Judge CYNTHIA HOLCOMB HALL. OPINION FERGUSON, Senior Circuit Judge. 1 This appeal presents the issue of whether a temporary detention ordered by the California Youth Authority Youth Offender Parole Board may be treated as either a prior sentence or a constructive parole revocation for the purpose of calculating criminal history points under the Sentencing Guidelines…