United States of America v. Frederico Ramsey

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDERICO RAMSEY,
Defendant - Appellant.
No. 21-3147
(D.C. No. 2:09-CR-20046-JWL-4)
(D. Kan.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges.**
_________________________________
Frederico Ramsey, a pro se litigant and inmate at the United States Medical
Center for Federal Prisoners in Springfield, Missouri (FCP), filed this action in the
federal district court in the District of Kansas, moving for compassionate release
pursuant to 18 U.S.C. § 3582(c)(1)(A). He did so on two grounds. First, he claimed
a medical reason for his early release, and second, he made a claim for sentence
reduction pursuant to the decision in Burrage v. United States, 571 U.S. 204 (2014)
* This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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(holding that a defendant cannot be liable under the penalty enhancement provision
under the Controlled Substances Act 21 U.S.C. § 841(b)(1)(C) unless the narcotics
distributed by the defendant are an independently sufficient but-for cause of the death
or serious injury).
The district court denied relief, and Ramsey appealed. Ramsey alleges two
errors by the district court. First, he claims the court incorrectly found that he failed
to show extraordinary and compelling circumstances regarding an increased risk to
his health and safety from the COVID-19 pandemic. Second, he argues that he
would have been entitled to a sentence reduction under Burrage, and that the court’s
denial of his claim was in error. We now affirm.
I. Background
In 2010, Frederico Ramsey was convicted of four charges related to the
possession and distribution of heroin. Among these was a conspiracy charge where a
drug-death resulted. In July 2011, he was sentenced to a prison term of 292 months.
Ramsey appealed from his convictions, and, in 2013, we affirmed both his
convictions and sentence. United States v. Ramsey, 830 F. App’x. 584, 584-85 (10th
Cir. 2020), cert. denied, 141 S. Ct. 2553 (2021).
On December 4, 2014, Ramsey filed a pro se motion, pursuant to 28 U.S.C.
§ 2255, to vacate his sentence, based on twenty-two ineffective assistance of counsel
claims. In a September 16, 2015 order, the district court denied nearly all his claims,
but took three under advisement. Eventually, in November 2019, the district court
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denied the three remaining claims. Ramsey petitioned this court for a Certificate of
Appealability, which we declined to grant. Id.
In 2021, Ramsey moved pro se for compassionate release pursuant to 18
U.S.C. § 3582(c)(1)(A). Ramsey sought to be released from prison and an immediate
reduction in his sentence to time served. He claimed an increased risk from the
ongoing COVID-19 pandemic, as well as seizures and bipolar disorder. In addition,
Ramsey claimed that if sentenced today he would have received a lesser sentence,
consistent with the Supreme Court’s holding in Burrage v. United States. The
district court denied relief. United States v. Ramsey, No. 09-20046-04-JWL, 2021
WL 3421581 (D. Kan. Aug. 5, 2021).
II. Discussion
We review for an abuse of discretion a district court decision to deny a
reduction of sentence under 18 U.S.C. § 3582(c)(2). United States v. Osborn, 679
F.3d 1193, 1195 (10th Cir. 2012). The trial court explained that, “[a]s a general
matter, a federal court may not alter a term of imprisonment once imposed, but
Section 3582(c) provides one exception to that general rule of finality. See United
States v. McGee, 992 F.3d 1035, 1041 (10th Cir. 2021).” United States v. Ramsey,
at *2. That statute provides that a court consider the applicable factors set forth in 18
U.S.C. § 3553(a) and reduce a term of imprisonment if it finds that “extraordinary
and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i).
The district court concluded that Ramsey’s arguments based on medical
factors are meritless, chiefly because the defendant has shown no evidence of a
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particular Covid risk to himself. United States v. Ramsey, at *2 (Ramsey “has not
established an extraordinary and compelling reason for his immediate release arising
from an increased risk of serious harm from COVID-19”). We agree.
All evidence indicates Ramsey’s underlying medical conditions are not a
present issue, as “his medical records indicate that his seizure disorder is in
remission, with his last seizure having occurred over 20 years ago, and there is no
documentation of bipolar disorder or other mental infirmity that would increase
defendant’s risk of harm from the virus.” United States v. Ramsey, at *3. Finally,
the “defendant has already tested positive once for the virus without experiencing any
symptoms.” Id. at *4. Ramsey give us no reason to question these conclusions.
These factors dispel Ramsey’s claim that the pandemic poses a particular threat to
him. He has therefore failed to show extraordinary and compelling reasons for
release based on his medical conditions.
In his submissions, Ramsey also relies heavily on Burrage v. United States,
but Burrage is easily distinguishable from Ramsey’s fact pattern. Burrage was
specifically about when the “drug distributed by the defendant is not an
independently sufficient cause of the victim's death or serious bodily injury.” Id. at
218. Here, all testimony at the trial pointed to the conclusion that the victim’s death
was directly caused solely by the drug the defendant distributed. Burrage does not
apply.
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III. Conclusion
For the foregoing reasons, we affirm the district court. We also address
Ramsey’s motion to proceed in forma pauperis. Ramsey fails to make a “reasoned,
nonfrivolous argument on the law and facts in support of the issues raised in the
action.” Lister v. Dep’t of the Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005). As a
result, we deny his motion to proceed in forma pauperis.
Entered for the Court
Allison H. Eid
Circuit Judge
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