U.S. v. Hernandez Coplin, 92-2228

• Decision Date: 03 November 1993
• Docket Number: No. 92-2228,92-2228
• Citation: 24 F.3d 312
• Parties: UNITED STATES of America, Appellee, v. Ramon HERNANDEZ COPLIN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 312

24 F.3d 312

UNITED STATES of America, Appellee, v. Ramon HERNANDEZ COPLIN, Defendant, Appellant.

No. 92-2228.

United States Court of Appeals First Circuit.

Heard Nov. 3, 1993.

Decided March 31, 1994.

Laura Maldonado Rodriguez, Asst. Federal Public Defender, with whom Benicio Sanchez Rivera, Federal Public Defender, Old San Juan, PR, was on brief, for appellant.

Edwin O. Vazquez, Asst. U.S. Atty., Hato Rey, PR, with whom Guillermo Gil, U.S. Atty., Washington, DC, and Jose A. Quiles-Espinosa, Sr. Litigation Counsel, Hato Rey, PR, were on brief, for the U.S.

Before BREYER, Chief Judge, COFFIN, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Ramon Hernandez Coplin was indicted by a grand jury in two separate indictments, each relating to a separate episode of smuggling aliens into the United States. The first indictment charged that Hernandez on April 16, 1992, had been captain of a yawl intercepted a mile off the coast of Puerto Rico carrying 92 illegal aliens from the Dominican Republic. The yawl was running without lights, had no safety equipment and sought to avoid capture. Hernandez, and his assistant Julio Reyes Acosta, were charged in four counts with seeking to smuggle four of the alien passengers into the United States. 8 U.S.C. Sec. 1324(a)(1)(A).

Thereafter, on July 1, 1992, Hernandez and Reyes were charged in a second indictment with six counts, under the same statute for seeking to smuggle six aliens into the United States on March 26, 1992. On this earlier occasion a yawl had been used, about the same number of passengers were aboard, and the same Puerto Rican coastline approached. Two women drowned that night and their bodies washed up upon the shore. The yawl made its way back to the Dominican Republic. As in the earlier indictment, each count related to a different alien.

On July 6, 1992, Hernandez pled guilty to all counts of both indictments pursuant to a plea agreement. In exchange for the pleas, the prosecutor agreed to dismiss yet another federal indictment against Hernandez (for illegally reentering the United States after a prior deportation) but made no other promises. Reyes entered guilty pleas at the same time. In the change of plea hearing, the government submitted a written version of what it said its trial evidence would show. Reyes agreed with the government's version of events; Hernandez did so only with a qualification. The present appeal revolves around that disagreement.

In substance, Hernandez and Reyes both admitted that they had been engaged in the smuggling operations charged in the indictments. As to the March 26 operation, the government's written version of events included the following language (the emphasis is ours):

At approximately midnight and while the yawl was approximately 100 yards from the beach at Aguadilla, Puerto Rico, an aircraft was heard in the vicinity. At said time, the captain of the yawl, that was later identified as defendant Ramon Hernandez Coplin, initially told the passenger (sic) that they must jump into the water because he did not want to be arrested. Due to the fact that some passengers were hesitating to jump, defendant Ramon Hernandez Coplin drew a gun and ordered them to jump into the water.

The evidence will show that females were yelling that they did not know how to swim or for help because they were drowning. Defendant Ramon Hernandez Coplin and his assistant, defendant Julio Reyes Acosta, who aided and abetted in the piloting of the yawl, ignored the pleas of the females and continued offshore back to the Dominican Republic to avoid arrest.

At the hearing, the trial judge summarized the government's proffer, including the portion that we have emphasized, and Reyes agreed (under oath) that the proffer was accurate. Hernandez' counsel said that Hernandez also accepted the proffer except that "he [Hernandez] has told me that at no time did he point a gun at anybody, or, and also that he did not push off the boat, anybody." The district judge then said this factual dispute should be the object of evidence in the sentencing hearing. The district judge then drew a line through the words emphasized above and Hernandez signed the amended version of the proffer. The guilty pleas were then accepted. ¹

On September 9, 1992, a sentencing hearing was held for Hernandez. The government presented as a witness one of the aliens smuggled into Puerto Rico on March 26; testifying through an interpreter, the witness said that Hernandez "had like a revolver in his hand and said, 'Everybody jump in, everybody jump in.' " The witness also testified that "the ladies were screaming that they were going to drown." Defense counsel did not cross examine but the district judge then asked, "Are you sure it was a gun?" The witness replied, "I knew it as a revolver."

The defense then called Hernandez who testified under oath through an interpreter. He testified that when the boat reached the shore "the people got out of the boat quite comfortably and started heading in land (sic)" and that he did not hear anyone scream. On cross examination, Hernandez said, "I never forced anybody, I didn't have a weapon. I have never used a firearm." Finally, the government called an agent of the Immigration and Naturalization Service to refute Hernandez' claims that the boat had reached the shore; the INS agent, based on the survival of the yawl and on interviews with six passengers, gave his opinion that the yawl had not reached the beach in Puerto Rico on March 26. Reyes was not called as a witness by either side.

The district judge then made an express finding that Hernandez had brandished a gun and threatened the two women who, as a result, jumped into the water and drowned. The court also inquired into Reyes' failure to appear to reaffirm his own testimony as to the gun given at the change of plea hearing, and Reyes' apparent unwillingness to reaffirm that testimony to the probation officer. Reyes' counsel then stated that his client told him that "he [Reyes] was afraid of Mr. Coplin, and that he would not testify in front of Mr. Coplin as to that matter."

After allowing defense counsel and Hernandez to speak to the proper sentence, the court computed the offense levels under the Sentencing Guidelines. ² The court found that the base offense level was 9 for the March 26 operation and 9 for the April 16 operation. U.S.S.G. Sec. 2L1.1. The court then increased both offense levels by two points each because of the supervisory authority Hernandez exercised over Reyes. U.S.S.G. Sec. 3B1.1(c). The court reduced the figure by two points as to the April 16 operation for acceptance of responsibility, U.S.S.G. Sec. 3E1.1; but the court refused to make a similar reduction as to the March 26 operation because Hernandez had not accepted "full responsibility" for his involvement, "[s]pecifically on the issue of the gun and ... the deaths."

The adjusted offense levels corresponded to imprisonment ranges of 8 to 14 months for the March 26 operation and 4 to 10 months for the April 16 operation. However, the court invoked its authority to depart upward, 18 U.S.C. Sec. 3553(b), and it imposed sentences of five years' imprisonment for the March 26 operation and four years' imprisonment for the April 16 operation, specifying that the two sentences were to be served consecutively. The court found a departure warranted in both cases by the very dangerous conditions of transportation in the yawl (e.g., lack of safety equipment and supplies); and the firearm and deaths were found to be aggravating circumstances in the March 26 operation.

1. On appeal, Hernandez begins by challenging the departure. Most of the discussion under this head is effectively an attack on the district court's findings and characterizations. The trial judge's findings on sentencing may be set aside only if clearly erroneous. See United States v. Pineda, 981 F.2d 569, 572 (1st Cir.1992). Nevertheless, given the magnitude of the departure, the specific criticisms made by counsel deserve careful attention.

First, at sentencing, the district judge orally described Hernandez' conduct in the March 26 operation as reckless and criminal behavior resulting in the deaths of two persons. In the same description, the judge used the word "murder" in referring to the incident. In a formal sentencing memorandum, issued a week or so after the sentencing, the court elaborated on the dangerous conditions in which Hernandez had transported the aliens and then referred, "in addition," to Hernandez' "reckless and criminal behavior, which resulted in the death-murder of two human beings." United States v. Hernandez-Coplin, 802 F.Supp. 657, 661 (D.P.R.1992).

Hernandez now points out that the probation officer, after interviewing the defendant, concluded that it was "highly probable" that Hernandez did not anticipate the death of any of his passengers. But there is no inconsistency between the probation officer's statement and the district court's summing up of the matter, even assuming that an inconsistency mattered. Indeed, while the probation officer did not use the word "murder," he did say that forcing the passengers out of the yawl into heavy tides reflected a reckless disregard for human life and the danger posed to the passengers was reasonably foreseeable.

We think that the trial judge, like the probation officer, was describing Hernandez' conduct as criminally reckless and that the word "murder" was used colloquially to stress the outrageousness of the conduct and to underscore the evident danger of death that the conduct posed. So read, the word "murder" is the kind of moral flourish that is routine at sentencing and wholly within the trial judge's discretion. As it happens, Hernandez' conduct might well constitute the offense of murder in some jurisdictions, under the felony murder doctrine or merely because the conduct created a sufficiently direct and foreseeable risk of...