U.S. v. Asseff, 89-5823

• Decision Date: 20 November 1990
• Docket Number: No. 89-5823,89-5823
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Jorge ASSEFF, Nestor Jesus Mena, Jorge Lopez, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 502

917 F.2d 502

59 USLW 2387

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Jorge ASSEFF, Nestor Jesus Mena, Jorge Lopez,

Defendants-Appellants.

No. 89-5823

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Nov. 20, 1990.

Fred Schwartz, Adorno & Zeder, Miami, Fla., for Asseff.

Clifford B. Hark, Miami, Fla., for Lopez.

Bruce E. Lowe, Lynne W. Lamprecht, Linda C. Hertz, Dawn Bowen, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.

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

Before TJOFLAT, Chief Judge, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

Defendants-appellants Miguel Jorge Asseff, Nestor Jesus Mena and Jorge Lopez appeal their enhanced sentences as being improper under the United States Sentencing Guidelines (Guidelines), promulgated under the Sentencing Reform Act of 1984, 18 U.S.C. Sec. 3551 et seq. (1988). Pursuant to a plea agreement, defendants-appellants and codefendant Maria Hoyos pled guilty to the charge of using a telephone in committing a drug offense. After reviewing the record in this case, we affirm.

I. BACKGROUND

On November 14, 1988, the United States Drug Enforcement Agency (DEA) obtained a large cocaine shipment that arrived in Miami, Florida, by using a confidential informant. Acting under instructions from an unidentified person, the informant placed the cocaine in a brown Chevrolet Impala. Two bales of cocaine were placed in the back passenger compartment of the car and were covered with black felt covering to appear to be the bench seat, which had been removed. The remaining cocaine bales were stored in the trunk.

Under DEA surveillance, the informant delivered the vehicle to a northwest Miami address. An unidentified person then drove the car to the Westland Mall in Miami, and left it there. DEA agents observed Mena, driving a blue pickup truck, circle the Impala at least twice during the late night and early morning hours.

On November 15, 1988, Mena and Asseff arranged a meeting. Mena informed Asseff that he needed the car moved because he thought that it might contain drugs and that he was being followed. Mena agreed to pay Asseff $1,000 to move the car.

On the afternoon of November 15, 1988, DEA agents saw Asseff and codefendant Hoyos arrive at the Westland Mall. Hoyos drove the Impala to an apartment complex in the proximate Kendall area of Miami, and entered one of the apartment units. Shortly thereafter, Asseff and Lopez arrived and went into the same apartment. Obtaining the car keys from Hoyos, Asseff and Lopez opened the trunk of the Impala three or four inches when they detected the odor of drugs. Asseff closed the trunk, returned to the apartment, and called Mena.

Leaving the Impala in the apartment parking lot, Asseff and Lopez drove to a convenience store where they met Mena. While Mena and Asseff had a discussion inside the store, Lopez made several calls from a pay telephone near the front door of the store. Undisputed evidence showed that the calls made by Lopez were in furtherance of the drug operation. Lopez was arrested at the convenience store. Mena and Asseff left the convenience store in the blue pickup truck driven the previous night by Mena; they were arrested after they ran a red light. Following his arrest, Asseff was seated in the rear of the DEA vehicle. DEA agents found keys fitting the Impala stuffed into the rear seat where Asseff sat.

When DEA agents seized the Impala at the apartment complex, a strong odor of cocaine emanated from inside the car and the trunk. Analysis of the seized cocaine revealed 278.60 kilograms of 91 percent pure cocaine. This amount and quality is the equivalent of 227.9 kilograms of 100 percent pure cocaine.

Pursuant to plea agreements with the government, each defendant-appellant and codefendant Hoyos pled guilty to a superseding information which charged a single count of unlawful use of a communication facility, the telephone, in violation of 21 U.S.C. Sec. 843(b) and (c) and 18 U.S.C. Sec. 2. ¹ Defendants-appellants' respective plea agreements provided that the government made no agreement regarding sentencing. The presentence investigation report (PSI) for each defendant-appellant calculated the Guidelines range to be six to twelve months of incarceration based on a base offense level of 12 under Sec. 2D1.6, minus two levels for acceptance of responsibility under Sec. 3E1.1(a), and a criminal history of category I. Because Guidelines Sec. 2D1.6 has no specific offense characteristic and the underlying offense was a drug offense, each PSI recommended that the court consider the amount of cocaine seized as the basis for enhancing the respective sentences under Guidelines Sec. 5K2.0. Departing from the Guidelines under this permissible rationale allowed the district court an increased sentence for each defendant-appellant to the statutory maximum of four years (48 months) under 21 U.S.C. Sec. 843(c). Furthermore, the respective PSIs noted that the applicable sentencing range for defendants-appellants' conduct (possession and conspiracy to possess over 200 kilograms of cocaine) would have been between fifteen and nineteen years.

After reviewing defendants-appellants' PSIs and considering the arguments of the parties, the district court decided that aggravating circumstances of a kind and to a degree existed that were not adequately contemplated by the Sentencing Commission in formulating the Guidelines, specifically, the purity and quantity of the drugs involved. Accordingly, the district court sentenced defendants-appellants each to four years of imprisonment. ² As before the district court, defendants-appellants on appeal contend that an upward departure from the Guidelines in their sentencing was unwarranted because they each had a minor role in the offense as merely transporters of the cocaine with no knowledge of the quantity involved. ³

II. DISCUSSION

Review of an appeal from a sentence imposed under the Guidelines requires evaluation of the district court's factual findings under the clearly erroneous standard. 18 U.S.C. Sec. 3742(e); United States v. Scroggins, 880 F.2d 1204, 1206 n. 5 (11th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1816, 108 L.Ed.2d 946 (1990). Specifically, the sentencing court's determination regarding a defendant's role in the offense is a factual finding subject to the clearly erroneous standard. United States v. Taxacher, 902 F.2d 867, 873 (11th Cir.1990); United States v. Erves, 880 F.2d 376, 381 (11th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 416, 107 L.Ed.2d 381 (1989). Under 18 U.S.C. Sec. 3553(b), a sentencing court may depart from the Guidelines range for a particular sentence when aggravating circumstances are present " 'of a kind, or to a degree' " not adequately taken into account by the Sentencing Commission in formulating the Guidelines and that should result in a different sentence. See Guidelines Sec. 5K2.0 (quoting 18 U.S.C. Sec. 3553(b)).

This court has established a three-part test for reviewing an upward departure under Sec. 3553(b):

First, was the aggravating circumstance cited by the district court adequately taken into consideration by the Sentencing Commission in formulating the guidelines? Second, if adequate consideration was not given to the circumstance, was consideration of the circumstance consistent with the goals of the sentencing guidelines? If the circumstance was properly taken into account, was the extent of the departure from the guideline range reasonable?

United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir.1990) (citations omitted). We, therefore, must consider each component of the test.

The Guidelines provide punishment for defendants convicted of drug felonies based upon the amount of drugs involved. While this case actually is a drug felony, the government agreed to permit defendants-appellants to plead to the nondrug offense of using a communication facility, a telephone, to commit a drug offense. The district court would have been constrained to apply Guidelines sentences that failed to take into account the magnitude of defendants-appellants' drug offense had it not gone outside the applicable Guidelines range of incarceration for six to twelve months. Clearly, this case presents an aggravating circumstance not adequately considered by the Sentencing Commission.

Because we have determined that the...