U.S. v. Borrero-Isaza

• Decision Date: 19 October 1989
• Docket Number: No. 87-5194,BORRERO-ISAZ,D,87-5194
• Citation: 887 F.2d 1349
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mauricioefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1349

887 F.2d 1349

58 USLW 2316

UNITED STATES of America, Plaintiff-Appellee, v. Mauricio BORRERO-ISAZA, Defendant-Appellant.

No. 87-5194.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 1, 1988.

Decided Oct. 19, 1989.

Mary F. Gibbons, Beverly Hills, Cal., for defendant-appellant.

John F. Walsh, III, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

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

Before HALL and LEAVY, Circuit Judges, and STRAND ^*, District Judge.

PER CURIAM:

I.

Defendant-Appellant, Mauricio Borrero-Isaza, appeals from a judgment and commitment order filed on June 25, 1987, which adjudged defendant guilty of one count of violation of 21 U.S.C. Sec. 846 (1982) (conspiracy to distribute and to possess with intent to distribute cocaine) and two counts of violation of 21 U.S.C. Sec. 841(a)(1) (1982) (possession with intent to distribute cocaine). Appellant received a sentence of twelve years in the custody of the Attorney General along with a five year post-release probation period on the conspiracy count, and he received consecutive twenty year suspended sentences on the other two counts.

II.

On January 9, 1986, appellant Borrero was arrested at codefendant Thomas Lind's place of business, "Hawaiian Shaved Ice," after Drug Enforcement Administration agents found approximately one kilogram of cocaine in appellant's car. Codefendant Lind was also arrested that same day for possession of one kilogram of cocaine.

On January 18, 1986, a three-count indictment was filed in the United States District Court for the Central District of California against both Borrero and co-defendant Lind. Borrero pled not guilty to all counts. On February 14, 1986, a superceding indictment was filed, and appellant again pled not guilty to all counts.

Co-defendant Lind pled guilty to counts I and II of the superceding indictment on March 24, 1986. On May 5, 1986, Lind was sentenced and committed to the custody of the Attorney General for seven years to be followed by a five year probationary period on count I (conspiracy) and a twenty year, suspended sentence on count II (possession with intent to distribute cocaine).

Appellant Borrero's trial began on April 2, 1986 and concluded with guilty verdicts on counts I, II and IV (conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 846 and 841(a)(1)) and with not guilty verdicts on Counts III and V (possession with intent to distribute methaqualone).

On June 6, 1986, appellant was sentenced and committed to the custody of the Attorney General for a period of twelve years followed by a five year period of probation on count I of the indictment and consecutive twenty year suspended sentences were imposed with respect to counts II and IV of the indictment. Borrero appealed several of the district court's orders, including the order of judgment and commitment. On April 15, 1987, 815 F.2d 1493, the Ninth Circuit remanded the case for resentencing because the district court had not specifically given the appellant an opportunity to object to the presentence report, in compliance with Fed.R.Crim.P. 32(a)(1).

On June 22, 1987, a hearing was held on appellant's motion to correct the presentence report. The court granted the motion and corrected the presentence report by deleting the term "source" and replacing it with the word "delivered" making it clear that the appellant had delivered the cocaine, but was not the source of the cocaine. (6/22/87 Transcript at 7). The same day, the trial judge resentenced Borrero to the identical terms as were originally ordered, twelve years in the custody of the Attorney General with parole eligibility pursuant to 18 U.S.C. Sec. 4205(b)(2) (1982) followed by a five year term of probation on count I, and consecutive twenty year suspended sentences on each of the other two counts.

III.

At both sentencing hearings, the judge enhanced Borrero's sentence because Borrero came from a "source country." The question arises whether this was a proper basis for imposing a harsher sentence. On appeal, Borrero contends that the district court violated his right to due process. He argues that he is a member of an identifiable group (Colombians), that there was a substantial degree of differential treatment between himself and his codefendant (a five year sentencing difference), and that the disparity was not neutral with respect to national origin. Cf. Batson v. Kentucky, 476 U.S. 79, 93-95, 106 S.Ct. 1712, 1721-22, 90 L.Ed.2d 69 (1986) (outlining the factors that establish a prima facie case of purposeful discrimination in the selection of the venire). Appellant asserts that the disparate treatment based solely on national origin is unconstitutional because "racial and ethnic distinctions of any sort are inherently suspect." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291, 98 S.Ct. 2733, 2748, 57 L.Ed.2d 750 (1978); see also Hirabayashi v. United States, 320 U.S. 81, 100, 63 S.Ct. 1375, 1385, 87 L.Ed. 1774 (1943). ("Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.").

The government agrees that a sentencing court cannot impose a more severe sentence on the sole basis of a defendant's alienage or nationality, stating: "Any other rule would be as morally repugnant as it would be unconstitutional." Brief of Appellee 11. Instead, the government objects to Borrero's characterization of the events at sentencing. According to the government, the sentencing judge imposed a harsher sentence because of Borrero's "extensive ties to a narcotics source country," and not because of his national origin. Id.

A.

Trial judges are accorded virtually unfettered discretion in determining what sentence to impose on a defendant. United States v. Barker, 771 F.2d 1362, 1364 (9th Cir.1985) (citing Dorszynski v. United States, 418 U.S. 424, 437, 94 S.Ct. 3042, 3049, 41 L.Ed.2d 855 (1974)); United States v. Stewart, 820 F.2d 1107, 1108 (9th Cir.), cert. denied, 484 U.S. 867, 108 S.Ct. 192, 98 L.Ed.2d 144 (1987). This discretion enables the sentencing judge to consider a wide, largely unlimited variety of information to insure that the punishment fits not only the crime, but the individual defendant as well. United States v. Safirstein, 827 F.2d 1380, 1384-85 (9th Cir.1987) (citing, inter alia, 18 U.S.C. Sec. 3577 ¹ ).

While a federal sentence within statutory limits ordinarily is not subject to review, the constitutional guarantee of due process, which continues to operate through sentencing, Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393 (1977), circumscribes the district court's discretion. See United States v. Gomez, 797 F.2d 417, 419 (7th Cir.1986) (sentencing defendant more harshly because of his nationality "obviously would be unconstitutional"); see also United States v. Tucker, 404 U.S. 443, 446-47, 92 S.Ct. 589, 591-92, 30 L.Ed.2d 592 (1972); Safirstein, 827 F.2d at 1384-85; United States v. Salas, 824 F.2d 751, 752 (9th Cir.), cert. denied, 484 U.S. 969, 108 S.Ct. 465, 98 L.Ed.2d 404 (1987). Thus, the district judge may not consider improper, inaccurate, or mistaken information, nor may he make unfounded assumptions or groundless inferences in imposing sentence. Safirstein, 827 F.2d at 1385 (abuse of discretion to impose maximum sentence based upon groundless inference of involvement in drug trafficking); see also Dorszynski, 418 U.S. at 431 n. 7, 94 S.Ct. at 3047 n. 7 (sentence may not be based upon improper or inaccurate information); Tucker, 404 U.S. at 447, 92 S.Ct. at 591 (review available if district judge relied upon "misinformation of constitutional magnitude"); United States v. Weston, 448 F.2d 626, 634 (9th Cir.1971) (unconstitutional to rely upon information that is materially untrue or of little value because lacking in indicia of reliability).

B.

Whether Borrero's right to due process was violated hinges upon the district court's actual basis for imposing a stricter sentence. There are two possibilities: Borrero received an enhanced sentence either (1) because of his national origin or (2) because he obtained the drugs from a source country. Our resolution of this issue begins and ends with a review of the record.

1.

At the sentencing hearing on June 6, the court outlined its reasoning for imposing Borrero's sentence:

Number one, I think your client [Borrero] committed perjury. ²

Number two, I think he was the source as compared with Mr. Lind.

Number three, he comes from a country of origin, namely, Colombia, which is a country that supplies much of the narcotics to this country.

Number four, [they] are the total scourge of this country right now, and I am not going to tolerate it, and I want the message to go to Colombia that we are not going to accept this kind of thing. All right.

Number five, that he doesn't use narcotics, and therefore, was doing this strictly for the money.

And number six, that Mr. Lind was sentenced to seven years, and I consider him [Borrero] more culpable.

(6/6/86 Transcript at 862).

This recitation sparked a long colloquy between the court and defense counsel. Defense counsel attempted to articulate that Borrero was not a major drug player: "We are not talking about a guy that is the head of an international organization." The court interrupted:

I don't think you are talking about the man and international organizations. All right. i.e., Colombia/United States access. Okay. But I want the guy, as you put it, who is down there in Colombia, that if somebody like this gets the sentence that he is going to get, wait until the man down there is caught. He is going to get buried. I want him to know that.

Defense counsel insisted that Borrero was not a "heavy weight." The court did not directly respond to this point; instead, it asked coun...