U.S. v. Hernandez-Rodriguez, HERNANDEZ-RODRIGUE

• Decision Date: 15 September 1992
• Docket Number: D,HERNANDEZ-RODRIGUE,No. 91-50572,91-50572
• Citation: 975 F.2d 622
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Efrainefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 622

975 F.2d 622

UNITED STATES of America, Plaintiff-Appellee, v. Efrain HERNANDEZ-RODRIGUEZ, Defendant-Appellant.

No. 91-50572.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted June 1, 1992.

Decided Sept. 15, 1992.

Nancy Kendall, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

David P. Curnow, Asst. U.S. Atty. argued, Michael G. Wheat, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.

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

Before: POOLE, BRUNETTI, and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Efrain Hernandez-Rodriguez (Hernandez) appeals his sentence for transporting unlawful aliens in violation of 8 U.S.C. § 1324(a)(1)(B). The district court departed upward from the Sentencing Guidelines based upon the fact that Hernandez led Border Patrol agents on a three-hour high-speed chase. Hernandez claims that the upward departure was impermissible because the district court also enhanced his sentence under U.S.S.G. § 3C1.2 for reckless endangerment of another person during flight from law enforcement officers. Hernandez also claims that the district court erroneously calculated his base offense level. Although an upward departure was authorized under the circumstances of this case, the district court failed to justify the extent of the departure. Therefore we vacate and remand for resentencing.

BACKGROUND

Hernandez was smuggled into this country. According to Hernandez, he was allowed to drive other unlawful aliens north from San Diego in lieu of a $300 payment. On March 14, 1991 he was spotted by Border Patrol agents while driving a 1973 Datsun 240Z north on I-15 in San Diego county. Hernandez had five passengers: one in the front seat and four others in the rear cargo compartment of the car, partially concealed by a blanket. Hernandez was pulled over for an immigration inspection. Once the agents left their patrol car, Hernandez sped away.

The agents pursued Hernandez for 165 miles. The chase lasted for more than three hours, with speeds up to eighty miles per hour on the freeway and up to forty-five to fifty miles per hour on surface streets. Hernandez did not observe posted traffic signs or stop signs and drove at excessive speeds through school and residential zones. Hernandez led the agents through the towns of Hemet, Mountain Center, Palm Desert, Indio, and Westmoreland, where he finally ran out of gas.

One of the passengers told Border Patrol agents that he met Hernandez in Tiajuana and Hernandez offered to smuggle him to Los Angeles for $300. Hernandez then brought him into the United States and placed him in the Datsun. This passenger said he feared for his life during the chase and asked Hernandez to pull over. Another passenger said that Hernandez picked him up in San Ysidro and offered him a ride to Los Angeles for a fee.

The Presentence Report (PSR) identified a base offense level of nine and a criminal

                history category of I.   It recommended a two-level increase under U.S.S.G. § 3C1.2 for reckless endangerment during flight as well as an upward departure under section 2L1.1 application note 8 due to dangerous or inhumane treatment of aliens.   While the applicable guideline range was eight to fourteen months, the PSR recommended a sentence of thirty months.   The district court found a base offense level of nine.   The court then added two levels under U.S.S.G. § 3C1.2 for reckless endangerment during flight and subtracted two levels for acceptance of responsibility.   The Guidelines range was four to ten months, but the court then departed upward and sentenced Hernandez to thirty months
                

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

We review the district court's decision to depart from the Guidelines under a tripartite test established in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc). First, the district court's determination that an "unusual circumstance" not adequately considered by the Guidelines permits departure is subject to de novo review. Id. Second, the district court's factual findings supporting the existence of an identified circumstance permitting departure are reviewed for clear error. Id. Finally, the extent of the departure is reviewed to determine whether it is reasonable in light of the standards and policies incorporated in the Sentencing Reform Act and the Guidelines. Id. at 751.

DISCUSSION

A. Upward Departure

1. Authority to Depart Upward under U.S.S.G. § 2L1.1 note 8

A district court may not depart from the Guidelines sentence unless the court has identified " '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....' " Lira-Barraza, 941 F.2d at 746 (quoting 18 U.S.C. § 3553(b)). The Sentencing Commission's adoption of U.S.S.G. § 3C1.2, "Reckless Endangerment During Flight," shows that the Commission has considered to some extent the dangers of high-speed chases. Section 3C1.2 provides a two-level increase "[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer...." U.S.S.G. § 3C1.2 (Nov. 1, 1990). Appellant argues that the district court erred in departing upward under U.S.S.G. § 2L1.1 based on the high-speed chase because that conduct was already fully considered under section 3C1.2.

Before the Commission adopted section 3C1.2, we permitted an upward departure for high-speed chases in cases involving the illegal transportation of aliens. See Lira-Barraza, 941 F.2d at 746; United States v. Rodriguez-Castro, 908 F.2d 438, 441 (9th Cir.1990); United States v. Ramirez-De Rosas, 873 F.2d 1177, 1179 (9th Cir.1989). We held that an upward departure was authorized under application note 8 to U.S.S.G. § 2L1.1, which states that an upward departure should be considered for "offenses involving large numbers of aliens or dangerous or inhumane treatment." U.S.S.G. § 2L1.1 comment. (n. 8). The question in this case is whether section 3C1.2 now forecloses an upward departure for high-speed chases when the fleeing car is laden with unlawful aliens.

The history of section 3C1.2 sheds no light on this issue. Before section 3C1.2 existed, some courts concluded that high-speed chases merited an enhancement under section 3C1.1, "Obstructing or Impeding the Administration of Justice." United States v. Paige, 923 F.2d 112, 114 (8th Cir.1991); United States v. White, 903 F.2d 457, 460-62 (7th Cir.1990). In the view of one court, section 3C1.2 has codified the result reached by those courts and "clarified, rather than changed, the existing law under the earlier § 3C1.1." United States v. Bell, 953 F.2d 6, 10 n. 4 (1st Cir.1992). We had held, however, that "whether a defendant recklessly endangered others while fleeing bears no logical relation to whether that defendant was obstructing Hernandez argues, however, that section 3C1.2 expressly considers reckless endangerment of others during high-speed chases and therefore limits the district court's discretion to depart upward under section 2L1.1 for the same conduct. Cf. United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989). We are satisfied that the aliens are not excluded from the operation of section 3C1.2. It is true that section 3C1.2 refers to the risk of injury "to another person," and the commentary explains that this "includes any person, except a participant in the offense who willingly participated in the flight." U.S.S.G. § 3C1.2 comment. (n. 4) (emphasis added). The alien passengers cannot be considered "participants in the offense" because they are not criminally responsible for smuggling under 8 U.S.C. § 1324. See U.S.S.G. § 3B1.1, comment. (n. 1) (participant is one who is criminally responsible for the commission of the offense). Even if the unlawful aliens hidden in the appellant's vehicle were participants in the smuggling offense, it is far from clear that they "willingly participated in the flight." They sought to enter the United States and avoid detection by hiding in Hernandez's vehicle, but there is no indication that they contemplated that he would drive his vehicle in a manner that seriously endangered their lives. Furthermore, there is no evidence that the aliens had control over his conduct and no indication that they had means of protecting themselves from it. Quite the contrary; when a passenger asked Hernandez to stop he paid no heed.

                the law enforcement officers who were attempting to apprehend him" and hence we had refused to enhance a sentence under section 3C1.1 for a high-speed chase.  United States v. Christoffel, 952 F.2d 1086, 1089 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1700, 118 L.Ed.2d 410 (1992).   In adopting section 3C1.2 the Commission provided no elucidation beyond a statement that "reckless endangerment during flight is sufficiently different from other forms of obstructive conduct to warrant a separate enhancement."   U.S.S.G.App. C at 166 (Nov. 1, 1991) (amendment 347)
                

The question which remains is whether section 3C1.2 adequately takes into account the particular danger imposed by the alien transporter upon his captive passengers. We hold that it does not. Application note 8 to section 2L1.1 demonstrates the Commission's special concern for the dangerous or inhumane treatment of aliens, and we have enforced that protective policy. See United States v. Gomez, 901 F.2d 728, 729 (9th Cir.1990) (allowing an upward departure when the defendant crowded eight aliens into a small, closed compartment located over the vehicle's exhaust system). The Commission's and our concern for the treatment of the aliens is not reflected in section 3C1.2, under which the...