In a decision on Thursday, the Second Circuit upheld Betsy Ramos’s two-year sentence for a violation of supervised release, finding that a district court may take recidivism enhancements into account in determining whether the maximum potential term of imprisonment for a crime is more than 20 years, qualifying the crime as a Grade A violation, under 7B1.1 (a)(1)(B).
The facts underlying the Circuit opinion in this case are tragic. In 1998, Ms. Ramos was on supervised release following a drug courier conviction when her boyfriend, who physically abused Ms. Ramos, shot and killed a police officer. Her abusive boyfriend was also killed. For reasons the Circuit opinion does not fully explain, Ms. Ramos was convicted of reckless manslaughter and served more than 20 years in state custody. When Ms. Ramos was granted parole, she was charged with a violation of her supervised release based on the manslaughter conviction, and sentenced to the maximum available term of 2 years, after an emotional hearing at which family of the deceased officer and his former NYPD partner spoke at length.
Ms. Ramos has stage IV rectal cancer with metastasis to the lungs, a prognosis considered terminal. Her current release date is in September 2021.
A new legal ruling and harsh language about drug convictions
In sentencing Ms. Ramos, the district court found that her reckless manslaughter conviction was a “crime of violence,” and a Grade A violation under 7B1.1(a)(1)(A)(i). On appeal, Ms. Ramos argued this was error. The Second Circuit sidestepped that argument by saying any error was harmless. The Circuit held that her reckless manslaughter conviction qualified as a Grade A violation, under 7B1.1 (a)(1)(B), because, with recidivism enhancements, a conviction for reckless manslaughter allowed for a sentence of more than 20 years. The Circuit’s new holding – that “a recidivism enhancement is fair game for a sentencing court to consider when assessing the maximum potential penalty for an offense constituting a violation of supervised release” – was, therefore, based on an argument apparently not addressed by the district court, but was apparently raised by the government for the first time on appeal.
In addition to the legal holding, the opinion is also notable for the harsh language used to describe Ms. Ramos’s criminal history related to drugs – language that seems like a throwback to the 1990s. Ms. Ramos was a drug addict and was convicted of three New York State drug sales in the 1980s. In briefing, the parties agreed these were minor sales, two of which involved only $20. The Circuit, however, described these three, low-level, street sales as comprising an “extensive” criminal history. Then, in 1993, Ms. Ramos was arrested at JFK, after having swallowed baggies of heroin. She fully cooperated, received a 5K letter, and was sentenced to 36 months of prison. Although, today, drug couriers in the Eastern District of New York often receive sentences much lower than 3 years, the district court called the 1993 sentence a “gift” and the Circuit agreed, calling it a “remarkably lenient” sentence.
In addition to the weighty and emotional circumstances involved in this case, the fact that Ms. Ramos had recently failed to make her bed while incarcerated also featured in the sentencing and the Circuit’s opinion. The district court chastised her, saying: “What does it take to fix your bed? You don’t have to be in prison to do it. What goes on in the mind of this defendant?” and, “If she can’t fix her bed the way she’s told, then how is she going to obey the law?” On appeal, counsel for Ms. Ramos suggested that this “tangent about [an] ‘unmade bed’” was unreasonable, but the Circuit said that “the failure to abide by institutional regulations is surely relevant” in sentencing, and that the incident was “not simply the failure to make a bed, but verbal aggression against the corrections officer.”
Ms. Ramos’s motion for compassionate release is pending.