U.S. v. Alvarez, s. 94-60338

• Decision Date: 14 April 1995
• Docket Number: Nos. 94-60338,s. 94-60338
• Citation: 51 F.3d 36
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mateo ALVAREZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Julian TORRES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis TORRES, Defendant-Appellant. to 94-60340.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 36

51 F.3d 36

UNITED STATES of America, Plaintiff-Appellee, v. Mateo ALVAREZ, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Julian TORRES, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis TORRES, Defendant-Appellant.

Nos. 94-60338 to 94-60340.

United States Court of Appeals, Fifth Circuit.

April 14, 1995.

Alfred Montelongo, Corpus Christi, TX, for Mateo Alvarez.

James L. Turner, Paula C. Offenhauser, Asst. U.S. Atty., Houston, TX, for U.S. in No. 94-60338.

Scott M. Ellison, G. Rudolph Garza, Corpus Christi, TX, for Julian Torres.

James L. Turner, Paula Offenhauser, Gaynell Griffin Jones, U.S. Atty., Houston, TX, for U.S. in Nos. 94-60339 and 94-60340.

Scott M. Ellison, G. Rudolph Garza, Corpus Christi, TX, for Jose Luis Torres.

Appeals from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

In this consolidated appeal, defendants-appellants Mateo Alvarez (Alvarez), Julian Torres (Julian), and Jose Luis Torres (Jose) (Defendants) complain of the sentences imposed under the United States Sentencing Guidelines (Guidelines) following their convictions on pleas of guilty to charges of conspiring to possess with the intent to distribute marihuana. Defendants argue that the district court erred in not downwardly departing to the extent recommended by the government. For the reasons that follow, we affirm.

Facts and Proceedings Below

On November 10, 1993, a federal grand jury indicted Defendants, along with eight others, for their involvement in a marihuana-smuggling operation from November 1990 until April 1993. Pursuant to written plea agreements, Defendants entered pleas of guilty to Count 7 of the indictment, which charged them with a conspiracy to possess with the intent to distribute more than 1,000 kilograms of marihuana in violation of 21 U.S.C. Secs. 846, 841(a)(1), and 841(b)(1)(A). ¹ In the plea agreements, the government agreed to move for a downward departure from the applicable Guideline range based on Defendants' substantial assistance. See U.S.S.G. Sec. 5K1.1. Defendants, however, acknowledged that the district court had discretion in determining whether and to what extent to depart. ²

At sentencing on April 29, 1994, the district court assigned Alvarez a criminal history category of I and a total offense level of 36, resulting in a sentencing range of 188 to 235 months. Julian and Jose were each assigned a criminal history category of I and total offense level of 31, resulting in a sentencing range of 120 to 135 months. All three Defendants faced a statutory minimum sentence of 120 months. See 21 U.S.C. Sec. 841(b)(1)(A). As agreed, the government presented evidence of Defendants' substantial assistance under section 5K1.1 at the sentencing hearing. In exchange for this assistance and in accordance with their plea agreements, the government recommended a 24-month sentence for Alvarez and 30-month sentences for Jose and Julian. The district court granted the government's motion for a downward departure from the applicable Guideline ranges and the statutory minimum, but decided not to depart to the extent recommended by the government. Instead, the district court sentenced each defendant to 60 months in prison, half the statutory minimum, and 5 years of supervised release. The court also ordered them each to pay a $50 mandatory special assessment.

Although the district court never stated its reasons for not departing to the extent recommended by the government, it did express concern over, among other things, the sentencing disparities respecting the eleven codefendants. At Alvarez's sentencing hearing, the court remarked, "[T]his is a very extensive drug-smuggling operation, and extensive drug smugglers should be punished extensively. Just like minimal participants should not be." The court asked the government whether this was a case in which "you have the top dog testifying against the smaller persons and receiving less punishment." The same day, at Julian and Jose's sentencing, the district court observed that Alvarez, Julian, and Jose were all "significant criminal[s], ... [a]nd yet they testify as to others and receive the same or less punishment than other persons not nearly as guilty." The district court specifically noted the sixty-month sentence imposed on a codefendant, Jose Elias Lopez, whose role was very minimal.

The district court entered judgment as to all Defendants on May 9, 1994. The same day, Defendants filed a joint, unopposed motion asking the court to reduce their sentences to the levels recommended by the government. After the district court denied their motion on June 13, 1994, Defendants brought this consolidated appeal.

Discussion

The Sentencing Reform Act of 1984, as amended, 18 U.S.C. Sec. 3551 et seq., 28 U.S.C. Secs. 991-998, provides that a district court may depart from the sentencing range set by the Guidelines only when it 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...." 18 U.S.C. Sec. 3553(b); see also U.S.S.G. Sec. 5K2.0. See, e.g., United States v. Rogers, 917 F.2d 165, 169 (5th Cir.1990) (enhancement allowed on the basis of an excessive criminal history point total), cert. denied, 499 U.S. 924, 111 S.Ct. 1318, 113 L.Ed.2d 252 (1991). Furthermore, to impose a sentence below the statutory minimum, the district court may act only on the government's motion and only for the purpose of reflecting a defendant's substantial assistance. 18 U.S.C. Sec. 3553(e).

We have consistently recognized that the Guidelines limit the district court's authority to deviate, upward or downward, from the applicable sentencing range. We have repeatedly held, for instance, that it is unlawful for the district court to base its decision to depart downward on certain individual characteristics of the defendant. See, e.g., United States v. O'Brien, 18 F.3d 301, 302-03 (5th Cir.) (no downward departure because of a defendant's post-conviction community service), cert. denied, --- U.S. ----, 115 S.Ct. 199, 130 L.Ed.2d 130 (1994); United States v. Lara-Velasquez, 919 F.2d 946, 954 (5th Cir.1990) (no downward departure because of a defendant's rehabilitative potential); United States v. Reed, 882 F.2d 147, 151 (5th Cir.1989) (no downward departure because of a defendant's "worth" or "goodness"); United States v. Burch, 873 F.2d 765, 768 (5th Cir.1989) (no downward departure because of the defendant's talents). In United States v. Ives, 984 F.2d 649, 651 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 111, 126 L.Ed.2d 76 (1993), we held that disparity of sentences among codefendants is not an aggravating or mitigating factor that would support a deviation either upward or downward from the applicable Guideline range. ³ See also United States v. Brown, 29 F.3d 953, 959 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 587, 130 L.Ed.2d 501 (1994).

The decision to depart here, however, was not based on the actual or potential disparity of sentences among codefendants. Both sides concede that the district court properly based its decision to depart downward on Defendants' substantial assistance to the government. ⁴ See 18 U.S.C. Sec. 3553(e). Nevertheless, Defendants contend that the district court, in determining the extent of the departure, improperly, and in violation of Ives, compared their recommended sentences to those of lower-level functionaries in the conspiracy. In so arguing, Defendants seek to extend Ives, which clearly spoke only to the decision to depart and not to the extent of a departure. As we and other circuits have recognized, however, the district court has the discretion to choose the appropriate sentence within the applicable Guideline range and to determine the appropriate extent of a downward departure; thus, a defendant cannot appeal the extent of a departure made pursuant to section 5K1.1 unless the departure was made in violation of law. United States v. McKinley, No. 93-1985, 32 F.3d 566 (5th Cir. August 1, 1994) at 3 (unpublished); United States v. Johnson, 33 F.3d 8, 9-10 (5th Cir.1994) ("the court is free to deny a departure or to grant a departure which is greater or smaller than that recommended by the government"); United States v. Lucas, 17 F.3d 596, 599 (2d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 240, 130 L.Ed.2d 163 (1994); cf. United States v. Miro, 29 F.3d 194, 199 (5th Cir.1994) (a district court's refusal to depart downward is unreviewable unless the refusal was in violation of law); United States v. Matovsky, 935 F.2d 719, 721 (5th Cir.1991) (sentence imposed within the Guideline range was not in violation of law and was therefore unreviewable). See also 18 U.S.C. Sec. 3742(a).

Defendants respond that the district court violated the law, in particular the rule stated in Ives, and thus that their sentences are reviewable on appeal. They assert that there is nothing meaningful about the distinction between deciding, on the one hand, whether to depart and, on the other, how far to depart. If disparity in sentences among codefendants is an improper basis for departure, they maintain, it likewise should be an improper basis for not departing downward to the extent recommended by the government. In support of their position, they cite the Fourth Circuit's decision in United States v. Hall, 977 F.2d 861 (4th Cir.1992).

In Hall, the government moved for a downward departure based on the substantial assistance of the defendant, Hall, who had requested that the district court also consider the sentences received by his codefendants in determining whether and how far to depart. The court granted the government's motion, but refused to consider the sentences of his coconspirators. On appeal, Hall argued that "even if the sentences imposed on his coconspirators are not...