U.S. v. Lira-Barraza

• Decision Date: 28 February 1990
• Docket Number: LIRA-BARRAZ,No. 88-5161,D,88-5161
• Citation: 897 F.2d 981
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesusefendant-Appellant. Civ. A.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 981

897 F.2d 981

2 Fed.Sent.R. 257

UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus LIRA-BARRAZA, Defendant-Appellant.

Civ. A. No. 88-5161.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 5, 1989.

Decided Feb. 28, 1990.

John Lanahan, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Carol C. Lam, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Before WALLACE and FLETCHER, Circuit Judges, and GEORGE, ^* District Judge.

GEORGE, District Judge:

Appeal from a sentence departing from sentencing commission guidelines ("Guidelines"). ¹

1] The district court's opinion is affirmed except for the special assessment.

BACKGROUND

On January 5, 1988 at approximately 7 p.m., border patrol agents near Salton Sea, California, became suspicious of the driver of an older model Mercury automobile. The driver, apparently the sole occupant of the vehicle, was sitting in a rigid manner and staring straight ahead as he drove past the agents. The rear of the Mercury was riding low as if heavily laden. The agents stopped the car to investigate the possibility that it was being used to smuggle aliens.

When the agents activated the emergency lights on their cruiser, the Mercury slowed and began to pull over. However, before reaching the side of the highway, it swung back onto the road and accelerated. The driver led the agents on a twelve-mile chase at speeds reaching ninety miles per hour. The car often swerved and passed other cars on the shoulder or in the left-hand lane.

When the Mercury finally stopped the agents arrested appellant LIRA-BARRAZA, an illegal alien, who had been driving. The agents discovered a number of undocumented aliens in the Mercury. Two of the aliens were in the trunk.

LIRA-BARRAZA pled guilty to illegal transportation of aliens pursuant to 8 U.S.C. Sec. 1324. The Honorable William B. Enright, District Judge for the Southern District of California, sentenced him to 36 months in custody, to be followed by two years of supervised release. In sentencing LIRA-BARRAZA, the judge departed from the Guidelines. ²

On appeal, LIRA-BARRAZA argues that his sentence was imposed "in violation of law as a result of an incorrect application of the Sentencing Guidelines." LIRA-BARRAZA cites to 18 U.S.C. Sec. 3742(d)(1). Specifically, LIRA-BARRAZA argues that the sentence violates the law because it is (1) "unreasonable," (2) arbitrary in violation of fifth amendment due process, and (3) cruel and unusual in violation of the eighth amendment. These arguments are grounded, for the most part, on numerical calculations.

I STANDARDS OF REVIEW

18 U.S.C. Sec. 3742 limits our review. Based upon Section 3742, we believe that departures from the Sentencing Guidelines should be reviewed according to a five step process:

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" (hereinafter "circumstance");

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission,

(4) if not, whether the circumstance should result in departure; and,

(5) whether the extent or degree of departure was unreasonable.

STEP ONE

18 U.S.C. Sec. 3553(c) requires the district court to state its reasoning for departing from the Guidelines. In addition, we require the district court to identify the specific aggravating or mitigating circumstance present in the case, and to make a clear finding that the Commission did not adequately consider that circumstance. ³ 18 U.S.C. Sec. 3553(b); United States v. Michel, 876 F.2d 784, 786 (9th Cir.1989); see also United States v. Salazar-Villarreal, 872 F.2d 121, 122 (5th Cir.1989).

When the sentencing court states several reasons, but we are unable to tell the extent to which it relied on each, we will vacate and remand, unless such a clarification is unnecessary to our review. ⁴ See United States v. Nuno-Para, 877 F.2d 1409, 1413-14 (9th Cir.1989).

STEP TWO

If step one is met, we then determine whether the circumstance identified by the district court as the basis for departure actually exists. This is a factual determination which we review for clear error. 18 U.S.C. Sec. 3742(d); United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989).

STEP THREE

If step two is met, we next decide whether the circumstance identified by the district court as justifying a departure qualifies as "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...." 18 U.S.C. Sec. 3553(b). Section 3553(b) suggests two situations which justify a departure: ⁵ (1) the identified circumstance was ignored by the Commission in formulating the relevant sections of the Guidelines; or (2) the identified circumstance is "present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." ⁶ Sentencing Guidelines Sec. 5K2.0 at 5.36-5.37.

In determining whether the kind of circumstance was adequately taken into consideration by the Commission, the district court shall consider the Sentencing Guidelines, policy statements, and official commentary of the Sentencing Commission (hereinafter "statutory record"). ⁷ See 18 U.S.C. Sec. 3553(b). Fundamental principles We move on to step four only if we determine in step three that the Sentencing Commission has not adequately considered the identified circumstance. Such a determination means that the Commission has not intended to foreclose the district court from departing from the Guidelines.

of appellate review require us to review de novo questions of law such as a trial court's construction of statutes. See, e.g., Blackfeet Indian Tribe v. Montana Power Co., 838 F.2d 1055, 1057 (9th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 79, 102 L.Ed.2d 56 (1988); Native Village of Stevens v. Smith, 770 F.2d 1486, 1487 (9th Cir.1985), cert. denied, 475 U.S. 1121, 106 S.Ct. 1640, 90 L.Ed.2d 185 (1986). In close cases, the sentencing court must attempt to discern the intent of the Commission with respect to the identified circumstance. The question of the intent of a law making commission is a question of law--no different than any other statutory interpretation we must decide. ⁸

STEP FOUR

We next decide whether the identified circumstance should, in the absence of statutory guidance, be a basis for departure from the Guidelines. ⁹ 18 U.S.C. Sec. 3553(b). The question of whether departure is warranted can only be decided by the sentencing court at the time of sentencing. Sentencing Guidelines Sec. 5K2.0 at 5.36. Because of their experience with the sentencing process, district courts enjoy an expertise foreign to both the Sentencing Commission and the appellate courts. This expertise complements the district court's greater familiarity with the particular factual twists of a case. Therefore, we hold that abuse of discretion is the proper standard of review for determining that a circumstance is a proper basis for departure.

The Guidelines seek to eliminate unwarranted sentencing disparity by establishing a subtle balance between uniformity and the exercise of individual discretion by sentencing judges. 1984 U.S.Code Cong. & Admin.News at 3333. The Guidelines suggest an evolutionary process in which the Sentencing Commission learns from the experience of sentencing judges through, among other things, their departures from the Sentencing Guidelines. See Sentencing Guidelines Ch. 1, Part A, Introduction 4(b) at 1.7-1.8; see also Wright, 873 F.2d at 444.

The process should be dynamic--not static. This is not to suggest that departure from the Guidelines should be the rule, and conformity the exception. ¹⁰ At this early stage in the Guidelines' development we hesitate to state a general rule other than the abuse of discretion standard of review on appeal. ¹¹ See Sentencing Guidelines, Ch. 1, Part A, Introduction 3 at 1.4; Wright, 873 F.2d at 444.

STEP FIVE

In step one, the sentencing court identified the aggravating or mitigating circumstances warranting a departure from the Guidelines. In step five, the sentencing court must state its reasons for the direction and the degree of its departure. 18 U.S.C. Sec. 3553(c). Generally, the sentencing court should explain why it chose a greater departure from the Guidelines than was imposed and upheld in previous published cases involving ostensibly similar circumstances.

After determining the presence and clarity of the above explanations, we next determine whether the departure is "unreasonable," 18 U.S.C. Sec. 3742(e)(3), either in direction or in degree. Diaz-Villafane, 874 F.2d at 49.

Section 3742 does not define the term "unreasonable," but based upon the statutory structure, the Guidelines, and general appellate principles, this court determines that the appropriate standard of review is the deferential abuse of discretion standard. Naturally, a district court abuses its discretion if it imposes a sentence which is unreasonable. We find persuasive the First Circuit's analysis in Diaz-Villafane:

This ... step involves what is quintessentially a judgment call. District courts are in the front lines, sentencing flesh-and-blood defendants. The dynamics of the situation may be difficult to gauge from the antiseptic nature of a sterile paper record. Therefore, appellate review must occur with full awareness of, and respect for, the trier's superior "feel" for the case. We will not lightly disturb decisions to depart, or not, or related decisions implicating degrees of departure.

Diaz-Villafane, 874 F.2d at 49.

The need for balance spoken of in step four is again apparent here. The goal of limiting unwarranted disparity will be met by balancing the need...