U.S. v. Nuno-Huizar, NUNO-HUIZA

• Decision Date: 28 December 1988
• Docket Number: No. 88-5192,D,NUNO-HUIZA,88-5192
• Citation: 863 F.2d 36
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juanefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 36

863 F.2d 36

UNITED STATES of America, Plaintiff-Appellee, v. Juan NUNO-HUIZAR, Defendant-Appellant.

No. 88-5192.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 4, 1988.

Decided Dec. 28, 1988.

Linda R. Navarro, Verna Wefald, Federal Public Defender of San Diego, Inc., San Diego, Cal., for defendant-appellant.

D. Thomas Ferraro, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before FARRIS and WIGGINS, Circuit Judges, and CROCKER, ^* Senior District Judge.

PER CURIAM:

Juan Nuno-Huizar appeals his sentence of 2 years imprisonment and two years of supervised release. He argues that the prison term should not have exceeded 7 months, the maximum period of imprisonment recommended by the probation officer as computed by application of the Sentencing Guidelines of the Sentencing Reform Act of 1984. He also argues that the entire sentence is defective because the trial court relied on the supervised release provision of the Sentencing Reform Act which we have since held to be unconstitutional.

Nuno, one of 13 defendants, was named in all six counts of an indictment charging conspiracy to harbor and transport illegal aliens (count one) and transportation of illegal aliens (counts two through six). On March 21, 1988, Nuno pled guilty to count two, and on May 23, 1988, was afforded an opportunity for a hearing on the presentence report, but presented no evidence to contradict the facts set forth in the report. A sentence of two years imprisonment with two years supervised release was pronounced. The remaining counts were dismissed on motion of the government. This expedited appeal followed.

In October, 1987, the Border Patrol Anti-Smuggling Unit began surveillance of Lindberg Field, San Diego, California, after complaints from the public about alien smuggling activities at that airport. A preliminary investigation revealed that large groups of suspected illegal aliens were being smuggled north from San Diego to Los Angeles, via American Airlines Flight 76, departing daily at 7:15 a.m. Further investigation disclosed a sophisticated scheme where the illegal aliens were first taken to various "drop houses" in the San Diego area after being smuggled into the United States. The defendants participated in the scheme by operating the "drop houses" or acting as lookouts, drivers, guides or ticket buyers. Drivers picked the aliens up from the "drop houses" and transported them to Lindberg Field. If the lookouts indicated it was safe, the "load car" dropped the aliens off, and the "guide" led the aliens to their flight and gave them their tickets. The aliens were met in Los Angeles by other smugglers. Occasionally the aliens were accompanied by one of the conspirators on the flight to Los Angeles. Loads of illegal aliens varied from 2 to 18 persons, and in several instances more than one load was taken to the airport on a particular date.

The investigation was concluded on December 3, 1987, when the defendants were arrested and search warrants were served on seven different residences used as "drop houses." Some of the residences contained firearms, large quantities of cash and money orders, as well as other evidence indicating involvement in alien smuggling.

By application of the Sentencing guidelines, the probation officer recommended that Nuno be sentenced to 7 months imprisonment which represented the upper limit of the applicable range of the sentence. The sentencing judge rejected that recommendation and imposed a sentence of 2 years imprisonment.

The district judge carefully set out his reasons for departure from the Guidelines, as required by 18 U.S.C. Sec. 3553(c). He stated that the alien smuggling scheme was extremely well-organized and sophisticated, and moved large numbers of people with clockwork precision. He noted that the scheme was carried on over a period of time, and that the flight to Los Angeles from San Diego had become "practically a commuter flight to Los Angeles" for the movement of the aliens. He examined Nuno's "role in these events, the nature of the operation, the length of time it existed, [and] the number of aliens...