872 F.2d 632 (5th Cir. 1989), 88-2621, United States v. Velasquez-Mercado

Docket Nº:88-2621.
Citation:872 F.2d 632
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Efrain VELASQUEZ-MERCADO, Defendant-Appellant.
Case Date:April 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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872 F.2d 632 (5th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

Efrain VELASQUEZ-MERCADO, Defendant-Appellant.

No. 88-2621.

United States Court of Appeals, Fifth Circuit

April 28, 1989

Rehearing Denied June 1, 1989.

Page 633

Marjorie A. Meyers, Roland E. Dahlin, II, Asst. Federal Public Defender, Houston, Tex., for defendant-appellant.

Frances H. Stacy, Jeffery A. Babcock, John G. Crews, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., for plaintiff-appellee.

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

Page 634

Before GARWOOD, JONES, and SMITH, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Efrain Velasquez-Mercado appeals his sentence of thirty-six months in prison for bringing undocumented aliens into the United States and illegally transporting them. At issue is whether the district court made sufficient findings to depart upward from the Federal Sentencing Guidelines. Concluding that the district court's findings of fact are sufficient and its departure is reasonable, we affirm.

BACKGROUND

Velasquez is a Salvadoran national. In January, 1988 he and a codefendant led into this country a large group of undocumented aliens. Velasquez assembled one of two groups of aliens that had originally departed from El Salvador. In Mexico, they joined forces and travelled north together. Velasquez was familiar with the desired point of entry into the United States. He collected money from all 32 aliens to secure transportation, arranged for them to be floated across the Rio Grande River, purchased a van, and drove the van with all the aliens toward Houston.

Velasquez was following another van near Hebbronville, Texas, when Boarder Patrol agents stopped the first van and signalled Velasquez to pull over. Instead, he accelerated onto a side street in Hebbronville. The Boarder Patrol agents radioed for assistance while Velasquez continued "at a high rate of speed." Finally, he stopped and tried to exit through the passenger door, and when he discovered that the door was jammed, he jumped in the back of the van and tried to blend in with the other 32 aliens.

When the agents approached the van, the passengers singled out Velasquez as its driver. One woman pointed a finger at him and said that he had taken money from the aliens and that he had raped two of the women. Other aliens later corroborated the stories of sexual abuse. One woman explained that she had to procure a knife to protect herself from Velasquez.

Velasquez was charged in a thirty-nine count indictment with: twenty-three counts of sexual abuse, in violation of 18 U.S.C. Secs. 2242, 2244, 2245, and 3238; two counts of bringing undocumented aliens into the United States, in violation of 8 U.S.C. Sec. 1324(a)(1)(A); four counts of transporting undocumented aliens, in violation of 8 U.S.C. Sec. 1324(a)(1)(B); and four additional counts related to the conspiracy to transport or bring in undocumented aliens. Because the district court lacked jurisdiction over alleged sexual abuse that occurred outside the United States, it dismissed those counts. 697 F.Supp. 292 (S.D.Tex.1988).

Pursuant to a plea agreement in which the remaining counts were dismissed, Velasquez pled guilty to one count of transporting undocumented aliens and the two counts of bringing undocumented aliens into the United States. At his sentencing hearing, the three women who were allegedly abused or threatened by Velasquez were questioned by the judge and examined by counsel. Counsel for Velasquez lodged objections to the offense level recommended in the presentence report. Nevertheless, the district court imposed a sentence of thirty-six months incarceration, which is higher than the guideline-specified sentence.

I. STANDARD OF REVIEW UNDER THE SENTENCING GUIDELINES

Stripped to essentials, the federal Sentencing Guidelines established an "offense level(s)" for each type or category of federal crime. 1 The Guidelines also specify certain aggravating and mitigating factors that correspondingly increase or decrease the offense level of each crime. See Secs. 3A1.1-3D1.2. 2 A sentencing table specifies

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the guideline sentence as determined by the intersection of the...

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