975 F.2d 622 (9th Cir. 1992), 91-50572, United States v. Hernandez-Rodriguez

Docket Nº:91-50572.
Citation:975 F.2d 622
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Efrain HERNANDEZ-RODRIGUEZ, Defendant-Appellant.
Case Date:September 15, 1992
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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975 F.2d 622 (9th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Efrain HERNANDEZ-RODRIGUEZ, Defendant-Appellant.

No. 91-50572.

United States Court of Appeals, Ninth Circuit

September 15, 1992

Argued and Submitted June 1, 1992.

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[Copyrighted Material Omitted]

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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

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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

  1. 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...

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