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09-1815 U.S. v. Ramirez

By: dmc-admin//May 24, 2010//

09-1815 U.S. v. Ramirez

By: dmc-admin//May 24, 2010//

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Sentencing
Career offenders; plain error

On plain error review, a defendant sentenced as a career offender bears the burden of showing that prior convictions were not violent felonies.

“On plain-error review, the burden of demonstrating both error and prejudice is on the defendant. See, e.g., United States v. Olano, 507 U.S. 725, 734–35 (1993); United States v. Vonn, 535 U.S. 55 (2002); United States v. Dominguez Benitez, 542 U.S. 74 (2004); Puckett v. United States, 129 S. Ct. 1423 (2009). Ramirez not only has not demonstrated that the PSR’s statements are incorrect (or at least that they are unsupported by the
sort of evidence permitted to the federal tribunal by Taylor and Shepard) but has not even argued that they could not be supported by allowable sources. Nor has he argued that he was deceived or misled into not protesting in the district court. For his
part, the prosecutor does not discuss who bears the risk of non-persuasion when the record is incomplete. Because Ramirez has not established that an error occurred—that is, has not shown it more likely than not that the PSR’s description of events could not be supported under the standards of Taylor and Shepard—there is no warrant for reversal under a plain-error standard.”

“The post-Begay cases in which we have reversed on plain-error review arose from non-divisible prior offenses. See, e.g., United States v. High, 576 F.3d 429 (7th Cir. 2009); United States v. Gear, 577 F.3d 810 (7th Cir. 2009); United States v. Booker, 579 F.3d 835 (7th Cir. 2009). When an offense is not divisible, plea colloquies, judicial admissions, judicial findings, and jury instructions from the prior prosecutions cannot be used to classify the prior convictions. It is then possible to say with certainty that an error occurred. By contrast, when the offense is divisible, a silent record leaves up in the air whether an error has occurred, and the allocation to defendant of the burdens of production and persuasion makes a difference.”

Affirmed.

09-1815 U.S. v. Ramirez

Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Easterbrook, J.

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