7th Circuit rejects ‘aging out’ of crime argument in gun sentence appeal

A man convicted of possessing a firearm as a felon who alleged he was “aging out” of crime did not convince the 7th Circuit Court of Appeals on Tuesday that his above-guidelines sentence should be reversed.

Eduardo Ramirez pleaded guilty to possessing a firearm as a felon and was sentenced to 72 months in prison — 15 months above the top of the guidelines range. He appealed, arguing that the U.S. District Court for the Northern District of Indiana procedurally erred by not fully addressing his argument that he, at age 44, was aging out of crime.

He also contended that his sentence was substantively unreasonable because the court overemphasized the danger he created when he evaded arrest and the seriousness of his past convictions.

But the 7th Circuit Court of Appeals affirmed in a brief per curiam order, initially concluding that the district court did not err in rejecting the aging-out argument without detailed discussion for two reasons.

“First, by counsel’s own admission, it was ‘not a strong argument,’ and he supplied no data for it, so the district court did not need to belabor the point. Second, in any case, data do not support the argument. A 57-month sentence, the top of the guidelines range, would have released Ramirez at 49 years old. But the crime for which he was convicted and that the district judge sought to deter and prevent — possessing a firearm as a felon — is recommitted often at that age: Recidivism for this crime is 60.1% among offenders 41 to 50 years old at release,” the panel wrote.

Thus, it determined that the district judge had no reason to think that Ramirez would have “aged out” of the crime, even with the additional 15 months. It further pointed out that a crime he committed nearly 20 years earlier also involved a gun and a dangerous drive in his vehicle, and therefore “his conduct shows that over two decades he has not aged out of specific crimes involving firearms and cars.”

On the issue of his above-guidelines sentence as substantively unreasonable, the 7th Circuit concluded that his action of racing through a red light and parking lots during an early weekday evening, as well as hitting his own passenger who had leapt from the car, “posed enough risk of death or bodily injury to more than one person that the district court permissibly found that the guidelines range understated the seriousness of his flight.”

“Similarly, the district court adequately reasoned that Ramirez’s criminal history … warranted an upward variance to deter crime, protect the public, and promote respect for the law. The court correctly noted that the guidelines range recognized part of Ramirez’s criminal record. But it reasonably explained that his persistent (and violent) history of crime, which included drug use, gun use, aggravated assault, and reckless disregard of the safety of others, some of which was excluded from his history score, showed a chronic and undeterred disregard for the law. That disregard required using the range as just an ‘initial benchmark,’” the 7^th Circuit wrote.

“In so reasoning, the court sufficiently justified its deviation from the top of the guidelines range by an additional 15 months. So the sentence is substantively reasonable.”

The case is USA v. Eduardo Ramirez, 20-1006.