U.S. v. Aguilar-Pena, AGUILAR-PEN

• Decision Date: 11 September 1989
• Docket Number: No. 88-1477,D,AGUILAR-PEN,88-1477
• Parties: , 5 Fed.Sent.R. 319 UNITED STATES of America, Appellee, v. Jorge Armandoefendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 347

887 F.2d 347

58 USLW 2287, 5 Fed.Sent.R. 319

UNITED STATES of America, Appellee, v. Jorge Armando AGUILAR-PENA, Defendant, Appellant.

No. 88-1477.

United States Court of Appeals, First Circuit.

Heard Sept. 11, 1989.

Decided Oct. 12, 1989.

Francisco R. Moya Huff, Hato Rey, P.R., for defendant, appellant.

Jose R. Gaztambide, Asst. U.S. Atty., with whom Daniel F. Lopez Romo, U.S. Atty., San Juan, P.R., was on brief, for U.S.

Before SELYA, Circuit Judge, COFFIN and FAIRCHILD ^*, Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal requires that we review a sentence in order to determine whether the district court appropriately departed from the sentencing guidelines promulgated pursuant to the Sentencing Reform Act of 1984, as amended, 18 U.S.C.A. Secs. 3551-3586 (West 1985 & Supp.1988); 28 U.S.C.A. Secs. 991-998 (West Supp.1988). Because we believe that the court acted impermissibly, we vacate the sentence and remand for further proceedings.

I. BACKGROUND

On November 5, 1987, Lufthansa Flight 535 made a scheduled stop at Puerto Rico's international airport enroute from Colombia to Frankfurt, West Germany. Defendant-appellant Jorge Armando Aguilar-Pena (Aguilar) was aboard. Much to Aguilar's chagrin, customs officials conducted an inspection of in-transit passengers. Based upon his "vague responses" and "nervous demeanor," Aguilar was referred to a secondary inspection, which revealed that he was carrying cocaine. Detention and indictment followed. The indictment charged: count 1--importation of cocaine into the United States, 21 U.S.C. Sec. 952(a); count 2--possession of cocaine with intent to distribute it, 21 U.S.C. Sec. 841; count 3--possession of undocumented cocaine on an aircraft "arriving in" the United States, 21 U.S.C. Sec. 955. ¹

Pursuant to a nonbinding plea agreement, see Fed.R.Crim.P. 11(e)(1)(A), defendant admitted guilt as to count 3. The district court, following standard convention, see Fed.R.Crim.P. 32(c), requested a presentence investigation report (PSI Report). When received, the PSI Report indicated that the "base offense level" corresponding to the statute of conviction was 18; the "total offense level", net of applicable adjustments (most significantly in this case, defendant's acceptance of responsibility), was 16; and the criminal history category was I (no prior record). Based on these conclusions, the probation officer used the grid and fixed the "sentencing range" at 21-27 months. See United States Sentencing Commission Guidelines Manual (Manual ) Sec. 1B1.1 at 1.13 (rev. ed. 1988); see also United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.1988) (explaining method of computation under guidelines); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989) (similar). The probation officer also stated that he had "not identified any information that would warrant a departure from the guidelines."

The district court held a sentencing hearing. No new information surfaced. The court accepted the computational conclusions contained in the PSI Report, but departed from the guidelines and sentenced Aguilar to a prison term of 48 months, United States v. Aguilar-Pena, 696 F.Supp. 781, 782 (D.P.R.1988), simultaneously dismissing counts 1 and 2 of the indictment.

On appeal, defendant's argument is one-dimensional. He does not object to the court's assessment of the sentencing range, or to any of the antecedent calculations upon which that assessment rested. Rather, defendant's sole contention is that the district court had no legally sufficient basis for disregarding the guidelines. We are constrained to agree.

II. DEPARTURE FROM THE GUIDELINES: IN GENERAL

We begin by tracing the interrelationship between the guidelines and the district courts' ability to go above the applicable sentencing range. We then proceed to discuss appellate review of departure decisions, again in general terms. In Part III, infra, we turn to the departure decision in this case.

A. Departures.

Inasmuch as the root purpose of the guidelines "is to provide a structure for evaluating the fairness and appropriateness of the sentence for an individual offender," S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3235, each guideline should be seen "as carving out a 'heartland,' a set of typical cases embodying the conduct that [the] guideline describes." Manual Ch. 1 Pt. A Sec. 4(b) at 1.6. It is only when the case before the court falls outside the "heartland" that departure comes into play.

Under the Sentencing Reform Act, a district court may depart from the guidelines if it "finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C.A. Sec. 3553(b); see generally Diaz-Villafane, 874 F.2d at 49; United States v. Russell, 870 F.2d 18, 19 (1st Cir.1989) (per curiam). Departure is permitted in those cases where idiosyncratic circumstances warrant individualization of sentence beyond that which is possible within the comparatively close-hewn parameters constructed by the guidelines. Such circumstances are those which "cannot, by their very nature, be comprehensively listed and analyzed in advance." Manual Sec. 5K2.0 at 5.36. And because departures are meant to be the exception, not the rule, Diaz-Villafane, 874 F.2d at 52, there must be something "special" about a given offender, or the accouterments of the crime committed, which distinguishes the case from the mine-run for that offense. "When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted." Manual Ch. 1 Pt. A 4(b) at 1.6.

Whether departure is appropriate, then, depends in part upon whether, in drafting the guidelines, the Sentencing Commission took into account the factors subsequently relied upon by the sentencing court as grounds for departure. See United States v. Uca, 867 F.2d 783, 786 (3d Cir.1989). Put bluntly, "where the applicable guidelines, specific offense characteristics and adjustments do take into consideration a [particular] factor ..., departure from the guideline is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." Manual Sec. 5K2.0 at 5.36-5.37.

B. The Anatomy of Review.

In reviewing the legitimacy of departures from the guidelines, we engage in a three-tier analysis. See Diaz-Villafane, 874 F.2d at 49. First, we evaluate the circumstances relied on by the district court in determining that the case is sufficiently "unusual" to warrant departure. If the stated circumstances pass muster, we proceed to the next rung and determine whether those circumstances were adequately documented. After the first two levels are climbed, the departure must be measured by a standard of reasonableness. Id. On the third tier, the district court's leeway is substantial. At that stage, "[w]e read the Guidelines as envisioning considerable discretion in departure decisions ... [and] defer, within broad limits, to the trial judge's intimate familiarity with the nuances of a given case." Id. at 52. On the first two steps, however, discretion is not the issue.

In determining whether the circumstances recounted by the district court as warranting departure were properly considered, our review is plenary. "[W]hether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure is ... a question of law." Diaz-Villafane, 874 F.2d at 49; accord Uca, 867 F.2d at 786.

Diaz-Villafane furnishes an illustration of a set of appropriate considerations. There, the myriad factors on which upward departure was predicated--e.g., the pendency of other (unrelated) trafficking charges against defendant; his use of children to deliver drugs; the amount of money involved in defendant's illicit ventures; the unusual purity of the heroin, see 874 F.2d at 50-51--could not adequately have been taken into account by the Sentencing Commission in formulating the guideline for the offense of conviction. Elements of this sort were not typical of the crime or, if typical, were present in Diaz-Villafane's case to a degree much greater than the norm. These idiosyncratic factors had clear relevance to the advisability of abandoning the guidelines and represented, almost archetypically, the sort of embellishments the Commission had in mind as conditions precedent to departure. See also United States v. Joan, 883 F.2d 491, 494-495 (6th Cir.1989) (where offender's history of violence "sufficiently unusual," upward departure permissible) (adopting Diaz-Villafane standard).

Where such unusual circumstances exist, the district court possesses wide discretion in determining that upward departure may be warranted. See Diaz-Villafane, 874 F.2d at 52; United States v. Sturgis, 869 F.2d 54, 56-57 (2d Cir.1989); United States v. Correa-Vargas, 860 F.2d 35, 37 (2d Cir.1988); see also United States v. Ryan, 866 F.2d 604, 609 (3d Cir.1989); Manual Sec. 5 K2.0 at 5.36 ("The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing."). In no other way can society be assured that the punishment will fit the crime. But in the absence of indicia of atypicality, departure cannot be sanctioned. Giving judges free rein to forsake the guidelines in cases falling within the heartland for a given offense would be tantamount to judicial repudiation of the Sentencing Reform Act and the important policies which propelled its enactment.

III. THE MERITS

We now proceed to the core issue raised by this appeal. Pursuant to 18 U.S.C.A. Sec. 3553(c)(2), the court below set forth the reasons for...