U.S. v. Barbontin, 89-5622

• Decision Date: 24 July 1990
• Docket Number: No. 89-5622,89-5622
• Citation: 907 F.2d 1494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alfredo BARBONTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1494

907 F.2d 1494

3 Fed.Sent.R. 76

UNITED STATES of America, Plaintiff-Appellee, v. Alfredo BARBONTIN, Defendant-Appellant.

No. 89-5622.

United States Court of Appeals, Fifth Circuit.

July 24, 1990.

Rehearing Denied Sept. 4, 1990.

Ronald P. Guyer, San Antonio, Tex. (Court-Appointed), for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before THORNBERRY, JOHNSON, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

A suspected leader of a Cuban drug cartel based in the San Antonio area pled guilty to the charge of aiding and abetting the possession of "a quantity of cocaine" in violation of 18 U.S.C. Sec. 2 and 21 U.S.C. Sec. 841(a)(1). The sentencing court assessed a four-level increase in the base offense, as allegedly authorized by the sentencing guidelines, to reflect the defendant's supervisory role in "a criminal enterprise involving five or more people." The court also imposed a two-level upward adjustment to account for the significant amount of drugs, by San Antonio standards, imported into the region by the defendant's organization.

We conclude, first, that the sentencing court failed to make a specific finding that the transaction of conviction involved, minimally, five participants. Second, the local community's intolerance to drug trafficking does not justify an upward departure from the guidelines. Accordingly, we vacate the sentence and remand.

I.

Alfredo Barbontin was arrested several days after an associate, Candelario Valdez, was caught selling approximately 273.3 grams of cocaine to undercover San Antonio police officers. The police had organized the purchase of ten ounces of cocaine through Valdez, a known dealer, and arranged to consummate the purchase at a San Antonio restaurant.

There, officers observed Barbontin instructing Valdez and supervising the transaction. The police also witnessed Barbontin departing the restaurant with a driver, Narciso Pedro, to retrieve the drugs for the exchange. Several individuals loitered about the transaction site who, the undercover police concluded, served as lookouts for Barbontin.

Valdez was arrested at the scene of the exchange. Barbontin was arrested days later, after detectives intercepted several incriminating telephone calls made by him, which suggested that Barbontin was indeed the source of the 273.3 grams of seized drugs. Incident to the arrest, police retrieved various drug-related items from Barbontin's residence, including scales, bank records, a digital pager, and a telephone directory with numerous names and numbers.

The guidelines assign an offense level of 20 for 200-300 grams of cocaine. Guidelines Sec. 2D1.1(c)(12). The sentencing court, however, added four levels, as provided by Guidelines Sec. 3B1.1(a) (leader of five or more participants merits four-level increase in offense), to reflect Barbontin's aggravating role. ¹ Additionally, the court elected to depart upwardly from the guidelines and assess two more levels to reflect the significant number of drugs, by San Antonio standards, brought into the community by Barbontin's organization.

Computing an aggregate offense level of 26, the court imposed a 78-month term of incarceration, which is the maximum available for Barbontin's category I criminal history and offense level. This term of imprisonment is 15 months more than that available had the court declined to depart from an offense level of 24 (to reflect the large quantity of imported drugs by San Antonio standards), and 37 months more than that available at level 20, if aggravating factors had not been considered.

II.

A.

District courts are accorded no deference for legally incorrect applications of the sentencing guidelines, although their findings of fact merit considerable deference under the "clearly erroneous" standard of review. See 18 U.S.C. Sec. 3742(e)(2) (West Supp.1990); United States v. Otero, 868 F.2d 1412, 1414 (5th Cir.1989) ("we review the application of the guidelines fully for errors of law"); United States v. Mejia-Orosco, 867 F.2d 216, 218 (5th Cir.) (sentences imposed as a result of incorrect application of guidelines must be reversed), clarified, 868 F.2d 807 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989). In the event that the sentencing court misapplies the guidelines, we must remand the case for resentencing "with such instructions as the court considers appropriate," 18 U.S.C. Sec. 3742(f)(1) (West Supp.1990), as we lack the authority to correct legally defective sentences on appeal. United States v. Stephenson, 887 F.2d 57, 62 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1151, 107 L.Ed.2d 1054 (1990).

A sentencing court retains the authority to depart from the narrow range of incarceration provided in the guidelines. United States v. Rivera, 879 F.2d 1247, 1254-55 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 554, 107 L.Ed.2d 550 (1989). Procedurally, however, the district court must articulate an "acceptable reason" for the departure, and the degree of departure must be "reasonable." See 18 U.S.C. Secs. 3553(c), 3742(e) (West Supp.1990); Mejia-Orosco, 867 F.2d at 219, 221. Aggravating circumstances that were not adequately taken into consideration by the Sentencing Commission in formulating the guidelines may justify an upward departure. Rivera, 879 F.2d at 1254.

B.

For those engaged in leading large criminal enterprises, the guidelines authorize the sentencing court to impose a four-level increase in the base offense "[i]f the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive." Guidelines Sec. 3B1.1(a). The rationale underlying this upward adjustment is rooted in the belief that leaders tend to profit more from the offense, present a greater danger to society, and are more likely to recidivate. Id. commentary.

At Barbontin's sentencing hearing, a DEA agent testified that his investigation of Barbontin's organization had established that he was indeed the leader of a drug-importation enterprise involving minimally ten individuals, whom the agent identified by name. The agent further added that "several" of these named subordinates were involved in the particular transaction leading to Barbontin's indictment and the instant plea bargain. Based upon this evidence and the Presentence Investigation Report (PSI), ² the court concluded that "there [is] sufficient evidence to show that Mr. Barbontin was a leader in this criminal activity, and that it involved at least five or more participants." Consistent with the PSI's recommendation, the court assessed a four-level increase in Barbontin's base offense, which increased his potential incarceration by twenty-two months.

Barbontin objects to this upward adjustment on several grounds, one of which we find to be meritorious. Specifically, the government failed to demonstrate that a minimum of five participants were involved in the precise transaction underlying the conviction. The DEA agent's testimony went only so far as to state that several participants were involved in the transaction of conviction. The PSI similarly fails expressly to identify at least five transactional participants.

The commentary accompanying section 3B1.1 is silent regarding whether the particular transaction giving rise to a conviction must involve five or more participants, or whether a four-level adjustment may be imposed incident to larger drug-trafficking activities that which are not the subject of the conviction. To date, few cases from this circuit have expressly considered a district court's compliance with section 3B1.1(a). On those occasions where a four-level increase was affirmed, the sentencing court had identified at least five transactional participants. See, e.g., United States v. Rodriguez, 897 F.2d 1324, 1326-27 (5th Cir.1990); United States v. Garza, 884 F.2d 181, 184 (5th Cir.1989).

In this case, the number of transactional participants is problematic. We previously have had no occasion to consider whether section 3B1.1(a)'s "headcount" may be satisfied inferentially or, stated differently, whether the sentencing court is free to consider subordinates uninvolved in the precise transaction leading to conviction, but certainly associated with the defendant.

In Rodriguez, we noted that pursuant to section 3B1.1, the sentencing court is entitled to make inferential factual determinations that we review under the clearly-erroneous standard. ³ Nevertheless, for purposes of measuring the size of the enterprise, we conclude that section 3B1.1(a) focuses upon the number of transactional participants, which can be inferentially calculated provided that the court does not look beyond the offense of conviction to enlarge the class of participants.

We agree with the government that the identities of the transactional participants need not be expressly proved for purposes of a section 3B1.1(a) departure. However, we adopt the view of other circuits that a section 3B1.1(a) adjustment is anchored to the transaction leading to the conviction. See United States v. Williams, 891 F.2d 921, 926 (D.C.Cir.1989) (the offense of conviction must involve requisite number of participants); United States v. Lanese, 890 F.2d 1284, 1293-94 (2d Cir.1989) (same), cert. denied, --- U.S. ----, 110 S.Ct. 2207, 109 L.Ed.2d 533 (1990).

The sentencing court is thus not at liberty to include those members of Barbontin's organization not involved in the transaction of conviction for purposes of a section 3B1.1(a) departure. However, the sentencing court is free to count the defendant himself as one "participant" in the criminal transaction. See United States v. Preakos, 907 F.2d 7 (1st Cir.1990) (per curiam) (may include defendant among Sec. 3B1.1(a) participants). On remand,...