U.S. v. Carrillo-Alvarez

• Citation: 3 F.3d 316
• Decision Date: 24 August 1993
• Docket Number: No. 92-50397,D,CARRILLO-ALVARE,92-50397
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorgeefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 316

3 F.3d 316

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

No. 92-50397.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 9, 1993.

Decided Aug. 24, 1993.

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

Shirley L. Feagles, Orange, CA, for defendant-appellant.

Robert O. Vicars, Jr., Sp. Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Before: FARRIS, NORRIS, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Jorge Carrillo-Alvarez appeals his sentence on the ground that the district court improperly departed upward under Sec. 4A1.3 of the sentencing guidelines. That section permits a departure if the defendant's criminal history category under the guidelines inaccurately reflects his or her prior criminal conduct. We vacate and remand for resentencing.

I.

Jorge Carrillo-Alvarez ("Carrillo") was arrested after leading Border Patrol agents on a seven-mile chase on Interstate 5 and on the surface streets of Oceanside, California. He admitted that the passengers in his vehicle (all but one of whom, on his instruction, left the vehicle before the chase began) were undocumented workers and that he was transporting them for a fee. He pleaded guilty to one count of transportation of illegal aliens, in violation of 8 U.S.C. Sec. 1324(a)(1)(B).

Under the Sentencing Reform Act (Title II of the Comprehensive Crime Control Act of 1984), 18 U.S.C. Sec. 3551 et seq., the district court must consider at sentencing both the nature of the defendant's offense and his or her overall criminal history. The defendant's offense is expressed numerically as a total offense level, which is calculated as a base offense level to which points are added (or from which points are subtracted) according to the gravity of the crime and the seriousness of the surrounding circumstances. Carrillo's total offense level was eleven. ¹

The events that comprise a defendant's criminal history are reduced to criminal history points, which add up to a criminal history score. ² Based on the criminal history score, the defendant is determined to fall into one of six criminal history categories. Because Carrillo's appeal concerns his criminal history category, we discuss his criminal record and the consequent guidelines calculations in some detail. ³

At the time of his offense, Carrillo was twenty-five years old. Since his eighteenth birthday, he had been convicted of four misdemeanors (aiding and abetting the illegal entry of undocumented workers at age twenty, driving without a license at age twenty-three, and being under the influence of controlled substances at age eighteen and again at age twenty) and three felonies (auto theft at age twenty-two and residential burglary at age eighteen and again at age twenty-four). He was given the appropriate criminal history points for each of these convictions. He received additional points because he was on parole at the time of his offense and because he committed the offense less than two years after being released from prison. Under the guidelines, his overall criminal record was expressed as nineteen criminal history points. ⁴ Defendants with more than twelve criminal history points are placed in criminal history category VI, the highest category. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). ⁵ Thus, Carrillo's criminal record caused him to be assigned to the category that contains the most serious of all criminals.

Carrillo's offense level of eleven and criminal history category of VI yielded a guideline sentence of 27-33 months. In the plea agreement, the government agreed to recommend the low level of the applicable guidelines range. Accordingly, the prosecutor recommended a sentence of 27 months. The probation officer who prepared the pre-sentence report, however, suggested that the court depart upward. In doing so, he relied on a guideline policy statement, United States Sentencing Commission, Guidelines Manual, Sec. 4A1.3, p.s (Nov. 1, 1991) ("U.S.S.G. Sec. 4A1.3," "Sec. 4A1.3"). At the time of Carrillo's sentence, the statement read:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range....

A departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes....

The Commission contemplates that there may, on occasion, be a case of an egregious, serious criminal record in which even the guideline range for Criminal History Category VI is not adequate to reflect the seriousness of the defendant's criminal history. In such a case, a departure above the guideline range for a defendant with Criminal History Category VI may be warranted.

U.S.S.G. Sec. 4A1.3, p.s. (November 1, 1991) (emphasis added). ⁶ The probation officer's reason for recommending an upward departure under Sec. 4A1.3 was that "Mr. CARRILLO-ALVAREZ's criminal history score exceeds the top end of the sentencing table. If the sentencing table was [sic] extrapolated his score of 19 would equate to a hypothetical criminal history category of VIII." For this reason, the probation officer recommended a sentence of 33-41 months.

At sentencing, the court stated,

[I]t appears as though the things that you are doing are creating what we call recidivism and the criminal history category really does not properly reflect the seriousness of your past criminal conduct. And now, for whatever reason, you're back before the court again on a situation that has already come to light in Temecula where there were several people killed as a result of these high-speed chases through city streets. ⁷

The fact of the matter is, sir, we just cannot tolerate your constant violations. Your law violations are to the point now where any judge takes a look at you and says to himself why let this man out. He's going to go right back and do the same thing again and again and again, as you've done since you were 18 years old.

After citing Sec. 4A1.3, the court quoted the probation officer's discussion in the pre-sentence report regarding a hypothetical criminal history category VIII and sentenced Carrillo to 41 months' imprisonment and three years of supervised release. Contending that the court's departure was improper, Carrillo appeals.

II.

The question before us is whether, in view of the Sentencing Commission's guidelines, policy statements, and official commentary, the district court properly concluded that the number and nature of Carrillo's criminal convictions constitute aggravating circumstances "of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines," so that a departure was warranted under Sec. 4A1.3. United States v. Luscier, 983 F.2d 1507, 1510, 1511 (9th Cir.1993) (quoting 18 U.S.C. Sec. 3553(b) (1988)); United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en banc). Whether the grounds relied upon by the district court are sufficient to warrant an upward departure is a question of law we review de novo. See United States v. Lira-Barraza, 941 F.2d at 746. The extent of any such departure is reviewed under the abuse of discretion standard. Id. at 747. We hold that the district court erred on two alternate grounds. Each warrants vacation of the sentence.

III.

The district court erred in departing upward under Sec. 4A1.3. In establishing category VI, the Sentencing Commission intended it to apply to precisely the kind of criminal record that is before us here. Carrillo's criminal history is simply not egregious enough to justify a departure.

A.

As a general rule, an upward departure under Sec. 4A1.3 is warranted only "when the criminal history category significantly under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit further crimes." U.S.S.G. Sec. 4A1.3, p.s. (emphasis added). Such a departure is appropriate only in an unusual case, because the criminal history category of the sentencing guidelines is designed expressly to account for a defendant's prior criminal conduct. United States v. Singleton, 917 F.2d 411, 412 (9th Cir.1990). Therefore, a court should not depart unless the defendant's record is "significantly more serious" than that of other defendants in the same criminal history category. United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990) (defendant in category IV) (citing United States v. Hernandez-Vasquez, 884 F.2d 1314, 1336 (9th Cir.1989)).

The Sentencing Commission's policy statement contains specific instructions concerning upward departures when the defendant is in criminal history category VI. According to those instructions, a district court may depart upward from the guideline range applicable to the most serious criminal history category only in extremely limited circumstances. Only "on occasion, [when there is] a case of an egregious, serious criminal record in which even the guidelines range for a Category VI criminal history is not adequate to reflect the seriousness of the defendant's criminal history," may the district court depart. Sec. 4A1.3 (emphasis added). We find that Carrillo's adult criminal record of four misdemeanors and three felonies is not so egregious that a departure is warranted.

1.

The government contends that Carrillo's youth, and his two state convictions for residential burglary, reflect a threat of recidivism and a pattern of serious offenses that the district court properly took into account at sentencing. We do not discount the number of Carrillo's offenses or the seriousness of the crime of...