# United States v. Ismael Antonio Ramos > Court of Appeals for the Second Circuit · February 15, 1978 · 572 F.2d 360 URL: https://www.frixlaw.com/law-library/cases/9464622 ## Case - **Full name:** UNITED STATES of America, Appellee, v. Ismael Antonio RAMOS, Appellant - **Court:** Court of Appeals for the Second Circuit - **Decided:** February 15, 1978 - **Citations:** 572 F.2d 360; 1978 U.S. App. LEXIS 12599 - **Precedential status:** Published - **Opinion:** Concurrence by Lumbard - **Judges:** Feinberg, Lumbard, Timbers, Moore, Fein-Berg - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9464622 ## How later opinions describe it (automated extraction) - characterizing the sentence given in that case as “unusually severe,” “excessive,” and “unheard of’ ## Opinion text LUMBARD, Circuit Judge (concurring): Although I agree with my colleagues that the appellant’s sentence should be vacated, I think something more must be said about why such an unusually severe sentence, imposed for the wrong reasons, can not be permitted to stand. Ismael Ramos was apprehended by the police in January, 1977 and charged with possession of heroin. Following his arrest, he first cooperated with authorities in implicating Juan Balaguer as the principal in the sale of heroin for which Ramos was the messenger. Subsequently, however, he refused to testify against Balaguer at the latter’s trial, citing his fear of reprisals against his family. The government made no attempt to have Ramos give his testimony under a grant of immunity. On March 18, 1977, having waived indictment, Ramos pled guilty in the Eastern District to a one count information charging him with possession of 17 ounces of heroin with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) (1970). He came before Judge Platt on May 19 for sentencing. The presentence report shows that Ramos is a 23 year old with strong family ties and no prior criminal record, save one traffic violation. Further, the report expresses the opinion that the defendant only recently became involved in criminal activities and that his offense is largely attributable to his concern for the well-being of his siblings and chronically ill mother. At sentencing, Judge Platt engaged counsel for Ramos and the Assistant United States Attorney in a *363 lengthy colloquy centering upon the defendant’s refusal to cooperate with the United States Attorney’s office concerning the prosecution of Balaguer — that is, his refusal to testify against his former confederate. At one point during this discussion, Judge Platt offered to adjourn the proceeding to allow the attorney for the government one more try at persuading Ramos to change his mind. Ramos refused, however, and the court imposed a sentence of ten years’ imprisonment to be followed by ten years’ special parole. The statutory maximum is fifteen years’ imprisonment. Contrary to Judge Moore’s suggestion, I believe that the minutes of the sentencing hearing make abundantly clear Judge Platt’s “reasons for selecting the particular sentence to be imposed”: By imposing an unusually severe sentence he sought to pressure Ramos to give testimony against Balaguer and, failing that, to punish Ramos for his refusal. To impose such a sentence of in terrorem proportions is not only an abuse of the court’s powers, it is also an interference with the efficient and speedy administration of criminal justice. As the record stands, Ramos committed no offense in refusing to testify against Balaguer. But he speeded the disposition of the court’s business by pleading guilty and thus making it unnecessary to have a trial of the charges. If, in addition, the government needed Ramos’ testimony against Balaguer, it could have granted him immunity from further prosecution in connection with the heroin transaction and compelled his testimony. 1 Upon Ramos’ continued refusal to cooperate, he then would have been subject to possible punishment for contempt of court. The government did not choose to pursue this course, however. On this record, therefore, there was no justification for the court’s imposing so severe a sentence, in large part for refusing to testify for the government. 2 The effect on the administration of criminal justice of such an excessive sentence following a plea of guilty presents an additional reason for vacating Ramos’ sentence. Had Ramos stood mute and insisted on his right to be tried, instead of pleading guilty, he would have been no worse off upon conviction. Indeed, from our knowledge of dispositions in such cases, he would undoubtedly have been much better off, as a ten year sentence, with ten year special parole to follow, is unheard of in eases such as Ramos’. It follows that if Ramos’ ten year sentence after a plea were permitted to stand, no one would plead guilty before Judge Platt or any judge who employed similar tactics to encourage cooperation with the government. Thus, many defendants, apprehensive about sentences on pleas of guilty, would choose to stand trial. Such a trend would lead to the trial of more criminal cases and would seriously threaten the ability of the district courts to try many of their criminal cases within the time limits required by the Speedy Trial Act of 1974. 3 . 18 U.S.C. § 6001 , et seq. (1970). . Our decisions in United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), and United States v. Vermeulen, 436 F.2d 72 (2d Cir. 1970), cert. denied, 402 U.S. 911 , 91 S.Ct. 1390 , 28 L.Ed.2d 653 (1971), are not in point. In each of these cases we ruled only that the sentencing judge, in his discretion, may take into account as a mitigating factor the defendant’s voluntary cooperation with the authorities. Nowhere have we suggested that the defendant’s refusal to cooperate may be considered in increasing the sentence he would otherwise receive. It is one thing to extend leniency to a defendant who is willing to cooperate with the government; it is quite another thing to administer additional punishment to a defendant who by his silence has committed no additional offense. . 18 U.S.C. § 3161 , et seq. (1975). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9464622. Public record. Not legal advice.