U.S. v. Mejia-Orosco

• Decision Date: 31 March 1989
• Docket Number: No. 88-5584,MEJIA-OROSC,D,88-5584
• Citation: 868 F.2d 807
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juventinoefendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 807

868 F.2d 807

UNITED STATES of America, Plaintiff-Appellee, v. Juventino MEJIA-OROSCO, Defendant-Appellant.

No. 88-5584.

United States Court of Appeals, Fifth Circuit.

March 31, 1989.

Alfredo Villarreal, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Everberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

ON PETITION FOR REHEARING

(Opinion Feb. 17, 1989, 5th Cir., 1989, 867 F.2d 216)

Before CLARK, Chief Judge, HIGGINBOTHAM, Circuit Judge, and LITTLE ^*, District Judge.

PER CURIAM:

On petition for rehearing, Mejia-Orosco correctly points out that 18 U.S.C. Sec. 3742(d), now renumbered Sec. 3742(e), was amended in November of 1988 by the Anti-Drug Abuse Act of 1988. See P.L. 100-690, reprinted in 1988 U.S.Code Cong. & Admin.News at 102 Stat. 4181, 4417. Neither side reported this amendment in its briefs, or at oral argument. However, the amendment supports our original opinion, to which we adhere.

Prior to November 18, 1988, section 3742(d) stated, in part, that the "court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous." United States v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.1989). The November amendment renumbers the section, and adds to the end of the phrase just quoted, "and shall give due deference to the district court's application of the guidelines to the facts."

This amendment reinforces the approach we adopted in our original disposition of this case. The amendment reaffirms that Congress intends to protect the judgment of the district courts. As we stated earlier, "sentencing under the guidelines is not ... an exact science. Justice cannot be meted out according to mathematical formulas.... The sentencing guidelines are not intended to cover all contingencies or rigidly bind district judges." Mejia-Orosco, 867 F.2d at 219.

Mejia-Orosco, however, contends that the amendment bars us from using the clearly erroneous standard to review the district court's determination of manager status. He would have us develop a separate "due deference" standard for review of determinations of sophisticated or complex facts, such as manager status. His argument is mistaken. The amendment's addition to the statute does not remove any finding of fact from the protection of the clearly erroneous rule. On the contrary, it serves as an additional caution against overly intense judicial review.

Indeed, as it originally stood, section 3742 instructed courts to give due regard to credibility determinations, and to uphold factual determinations of the district unless they are clearly erroneous. The "due regard" language does not establish a separate "due regard" standard for review of the sentencing judge's resolution of credibility issues. The clearly erroneous standard appellate courts have long applied to fact review serves to protect the sentencing judge's evaluation of witness testimony. The "due regard" clause which expressly requires clearly erroneous review does no more than remind appellate courts of the reasons for, and necessity of, deference to the trial court. The added "due deference" language does no more.

Mejia-Orosco attempts to buttress his argument by reference to excerpts from the Congressional Record; see Congressional Record at H11257 (October 21, 1988) (section-by-section analysis of the Anti-Drug Abuse Act of 1988); but the thrust of the legislative analysis supports our original disposition of this appeal. The record discussion of the amendment to section 3742(d) provides:

The deference due a district court's determination will depend upon the relationship of the facts found to the guidelines standard being applied. If the particular determination involved closely resembles a finding of fact, the court of appeals would apply a clearly erroneous test. As the determination approaches a purely legal determination, however, the court of appeals would review the determination more closely.

Congressional Record at H11257 (1988). The purported purpose of the amendment was to "give the court of appeals flexibility in reviewing the application of a guideline standard that involves some subjectivity." Id. Our Mejia-Orosco decision, recognizing that the district court's decision "closely resembles a finding of fact," and so was protected by the clearly erroneous standard, is consistent with both the letter and the spirit of the amendment.

Mejia-Orosco, however, focuses not upon this express statement of the amendment's purpose, but on an example which an earlier paragraph in the congressional analysis uses to demonstrate the need for deference to district courts. The example refers to section 3A1.1 of the guidelines, which calls for a...