941 F.2d 745 (9th Cir. 1991), 88-5161, United States v. Lira-Barraza

Docket Nº:88-5161.
Citation:941 F.2d 745
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus LIRA-BARRAZA, Defendant-Appellant.
Case Date:July 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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941 F.2d 745 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Jose Jesus LIRA-BARRAZA, Defendant-Appellant.

No. 88-5161.

United States Court of Appeals, Ninth Circuit

July 22, 1991

Argued and Submitted En Banc Feb. 21, 1991.

Judy Clarke, Federal Defender of San Diego, San Diego, Cal., for defendant-appellant.

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

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


JAMES R. BROWNING, Circuit Judge:

Jose Jesus Lira-Barraza appeals a sentence of 36 months and a special assessment of $50 imposed under the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3351, et seq. (1988) ("the Act"), on his plea of guilty to illegal transportation of aliens in violation

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of 8 U.S.C. § 1324. 1 The district court departed from the 0 to 6 months range recommended by the United States Sentencing Guidelines ["U.S.S.G." or "Guidelines"] because Lira-Barraza, in an attempt to evade apprehension, drove his car carrying a number of undocumented aliens at high speeds and in a dangerous manner. A panel of this court affirmed the sentence, except the special assessment, relying on United States v. Ramirez-DeRosas, 873 F.2d 1177, 1179 (9th Cir.1989), which upheld a departure to 30 months from a Guideline range of 0 to 4 months based upon a similar high-speed chase. See United States v. Lira-Barraza, 897 F.2d 981, 987-88 (9th Cir.1990). We granted rehearing en banc. United States v. Lira-Barraza, 909 F.2d 1370 (9th Cir.1990).

18 U.S.C. § 3553(b) requires a court to sentence a defendant within the applicable Guideline range unless "the court 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." The panel set forth a five-step process for reviewing sentences outside the applicable Guideline range. 2 These five steps may be combined into three.

The first is to determine whether the district court had legal authority to depart. By the terms of 18 U.S.C. § 3553(b), the district court may not depart from the applicable Guideline range unless it identifies an aggravating circumstance of a kind or to a degree the Commission did not adequately take into account when formulating the Guidelines. If the circumstance is one not adequately considered, the court is legally authorized to depart so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3553(a), with the Guidelines, and, of course, with the Constitution.

As the panel explained, whether the Commission adequately took the circumstance into account is a question of law, subject to plenary review. Lira-Barraza, 897 F.2d at 985. Whether consideration of the circumstance is inconsistent with section 3553(a) and the Guidelines is also a question of law reviewed de novo since it involves determining the statute's meaning and the Commission's intent. If the district court has authority to depart, the court's decision to depart or not (as distinguished from the extent of departure if the court decides to depart) is left to the court's discretion.

In this case, the district court identified Lira-Barraza's participation in a high-speed chase as the aggravating circumstance. The Commission's express statement in Application Note 8 of U.S.S.G. § 2L1.1, that the Commission did not consider the existence of this circumstance in formulating the Guidelines and that departure should be considered, established beyond argument that departure was legally authorized.

Second, we review for clear error factual findings supporting the existence of the identified circumstance. 18 U.S.C.

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§ 3742(d). Since Lira-Barraza did not dispute the existence of the circumstances relied on by the district court as the basis for departure, the court's finding that these facts existed obviously met the clearly erroneous standard. See Lira-Barraza, 897 F.2d at 987.

Third, we must determine whether the extent of departure from the applicable Guideline range was "unreasonable" within the meaning of 18 U.S.C. § 3742(e)(3) and (f)(2), which define the standard of appellate review. This is the issue presented for decision by Lira-Barraza. 3

Lira-Barraza argues that to realize Congress' purpose of reducing unwarranted disparity in sentencing the courts should consider the sentencing scheme established by the Act and the Guidelines in determining whether the extent of a departure is "reasonable;" that there is nothing in the district court's sentencing statement indicating the court did so; 4 and that the sentence imposed is inconsistent with such an approach. Lira-Barraza points out that his 36-month sentence is six times greater than the maximum provided by the applicable Guideline range, 5 and falls within the range provided for what he regards as significantly more serious offenses. 6 Lira-Barraza also points out that although the departure was equivalent to a 13 to 14 level increase in the base offense level, the Commission in a subsequent amendment to the applicable Guideline provided that the circumstances the court relied upon for departure justified an increase of only two levels. 7

The government responds that the extent of departure is within the discretion of the district court and need not be justified by reference to other provisions of the Guidelines. The government contends the purpose of the Guidelines is to prevent disparity in "typical" or "heartland" cases, see United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, intro. comment. (4(b)) (1990) [hereinafter "Guidelines Manual"], and not in the "atypical" cases in which departure is permitted. Unguided departures, the government argues, are essential to the evolutionary process through which the Commission learns from the experience of sentencing judges reflected in departure sentences and adjusts the Guidelines accordingly. See Lira-Barraza, 897 F.2d at 985.

The government relies upon a line of cases 8 that emphasizes the discretion vested in the district court to determine the

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degree of departure, and rejects any approach requiring the district court to add mechanically sentence ranges drawn from potentially analogous provisions in the Guidelines. We agree that determining the degree of departure is inevitably and properly a discretionary judgment. It does not follow, however, that the judge's discretion is not limited by the judgments of the Congress and the Commission reflected in the Act and in the Guidelines. There are many reasons for concluding departure sentences should be consciously measured against these standards.

Congress regarded "unwarranted sentencing disparity" as "a major flaw in the existing criminal justice system," S.Rep. No. 225, 98th Cong., 1st Sess. 65, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3248, attributable to "the lack of any statutory guidance or review procedures to which courts and parole boards might look." Id. at 38, reprinted in 1984 U.S.Code Cong. & Admin.News at 3221 (footnote omitted). 9 The solution to the problem was to abolish the parole system entirely and provide "a comprehensive statement of the Federal law of sentencing" for the guidance of the courts. Id. at 50, reprinted in 1984 U.S.Code Cong. & Admin.News at 3233. The Act "creates a sentencing guidelines system that is intended to treat all classes of offenses committed by all categories of offenders consistently." Id. at 51, reprinted in 1984 U.S.Code Cong. & Admin.News at 3234 (emphasis added; footnote omitted); see also id. at 52, reprinted in 1984 U.S.Code Cong. & Admin.News at 3235. Specifically, "the judge is directed to impose [a] sentence after a comprehensive examination of the characteristics of the particular offense and the particular offender.... This will assure that the probation officer and the sentencing judge will be able to make informed comparisons between the case at hand and others of a similar nature." Id. at 53, reprinted in 1984 U.S.Code Cong. & Admin.News at 3236; see also id. at 52, reprinted in 1984 U.S.Code Cong. & Admin.News at 3235.

Congress' perception of the problem, the cause, and the solution supports Lira-Barraza's interpretation of the statute and undercuts that proposed by the government. The problem was disparity. Its cause was unlimited judicial discretion. The remedy was a single statutory sentencing structure guiding the discretion of the court in all cases to the end that similar sentences would be imposed on similar offenders for similar offenses.

Recognition of sentencing discretion to be exercised in departure cases alone without regard to the sentencing system established by the Act would be inconsistent with the statute's purpose and structure. It would create an exception in a Federal sentencing system Congress intended to be comprehensive, risking return in this category of cases to the unwarranted sentencing disparity Congress sought to eliminate. See United States v. Kikumura, 918 F.2d 1084, 1110-111 (3d Cir.1990); United States v. Pearson, 911 F.2d 186, 190 (9th Cir.1990); United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990).

There is nothing in the structure of the statute or the nature of this group of cases to justify such an exception. Departure is allowed in these cases because they involve an aggravating or mitigating circumstance the Commission did not identify in formulating the applicable...

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