U.S. v. Correa-Vargas, CORREA-VARGA

• Decision Date: 18 October 1988
• Docket Number: D,No. 68,CORREA-VARGA,68
• Citation: 860 F.2d 35
• Parties: , 1 Fed.Sent.R. 313 UNITED STATES of America, Appellee, v. Luis Fernandoefendant-Appellant. ocket 88-1167.
• Court: U.S. Court of Appeals — Second Circuit

Page 35

860 F.2d 35

57 USLW 2269, 1 Fed.Sent.R. 313

UNITED STATES of America, Appellee, v. Luis Fernando CORREA-VARGAS, Defendant-Appellant.

No. 68, Docket 88-1167.

United States Court of Appeals, Second Circuit.

Argued Sept. 1, 1988.

Decided Oct. 18, 1988.

Joel B. Rudin, New York City (Mass & Rudin, Dana A. Roth, of counsel), for defendant-appellant.

David W. Shapiro, Brooklyn, N.Y., Asst. U.S. Atty. for E.D.N.Y. (Andrew J. Maloney, U.S. Atty. for E.D.N.Y., David C. James, Asst. U.S. Atty., of counsel), for appellee.

Before FEINBERG, Chief Judge, CARDAMONE and PRATT, Circuit Judges.

FEINBERG, Chief Judge:

Luis Fernando Correa-Vargas appeals from a sentence of Judge Sifton of the United States District Court for the Eastern District of New York, imposed upon him for violation of 21 U.S.C. Sec. 843(b), which prohibits use of a communication facility in the commission of a drug offense. The judge imposed the statutory maximum of 48 months, well over the recommended range of imprisonment for this offense in the Sentencing Guidelines. The judge justified his upward departure from the Guidelines by the quantity of narcotics involved. Appellant claims that this was improper. For reasons given below, we affirm the judgment of the district court.

Background

In late 1987, agents of the Drug Enforcement Administration (DEA) received information from an informant that a drug transaction was to take place at the Howard Johnson Plaza Hotel in Plainview New York. The next day, a DEA agent observed a man walking back and forth behind the hotel when Correa-Vargas drove into the parking lot. After a short conversation, the man took a large cardboard box from the trunk of his car, placed it into Correa-Vargas's car, and Correa-Vargas handed him a quantity of cash. DEA agents blocked Correa-Vargas as he attempted to leave the parking lot. Subsequent investigation showed that the box contained 20 kilos of 87 per cent pure cocaine. The agents also found an expensive cellular telephone in Correa-Vargas's car.

Correa-Vargas was initially indicted on one count, charging conspiracy to possess with intent to distribute in excess of five kilos of cocaine, 21 U.S.C. Secs. 846, 841(a)(1) and (b)(1)(A), and on a second count, charging possession of the cocaine, 21 U.S.C. Sec. 841(a)(1) and (b)(1)(A). In order to protect a confidential informant, we are told, the government agreed to accept a guilty plea to a one-count superseding information charging Correa-Vargas only with using a communication facility in the commission of a drug offense, 21 U.S.C. Sec. 843(b).

Because the offense took place after November 1, 1987, the Sentencing Guidelines apply to this case. See Sentencing Reform Act of 1984, Pub.L. No. 98-473, Sec. 235(a)(1), 98 Stat. 2031, amended by Sentencing Reform Amendments Act of 1985, Pub.L. No. 99-217, Sec. 4, 99 Stat. 1728, and Sentencing Act of 1987, Pub.L. No. 100-182, Sec. 2(a), 101 Stat. 1266. The applicable guideline for a violation of 21 U.S.C. Sec. 843(b) recommends a sentence of from six to twelve months. Sentencing Guidelines Sec. 2D1.6. ¹ At the sentencing hearing, Judge Sifton departed from the guideline and imposed the statutory maximum of 48 months, because he considered the quantity of cocaine to be an aggravating circumstance. This appeal, pursuant to 18 U.S.C. Sec. 3742(a)(3)(A), followed.

Discussion

We note at the outset that appellant has not challenged the constitutionality of the Sentencing Guidelines, an issue that has already been argued to the Supreme Court and to this court. Turning to the issues before us, the Sentencing Reform Act of 1984 provides the statutory standard for reviewing sentences. Section 213(a) of the Act provides, in relevant part:

(d) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the range of the applicable sentencing guideline, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.

18 U.S.C. Sec. 3742(d).

The parties here agree that the district judge properly used the correct guideline in deciding what sentence to impose. The controversy is over whether the judge used an impermissible factor in departing from the Guidelines. Therefore, the ultimate question is whether, in the language of subsection (d)(3) just quoted, the sentence is "unreasonable." Appellant claims that it is, for a number of reasons.

Appellant argues that the district court incorrectly relied on the large quantity of cocaine found in his possession to depart from the Guidelines. Although the Guidelines recommend different offense levels based on the quantity of drugs with most drug-related offenses, they do not follow a similar graduated approach with the quantity of drugs underlying telephone counts. Compare Sentencing Guidelines Sec. 2D1.1(a)(3) and Sec. 2D1.6. Appellant claims that this disparity shows that the Commission considered quantity as an aggravating factor in some offenses but rejected that approach for telephone-count offenses. He also argues that the judge used a real-offense method in sentencing him for conduct for which he was not convicted, rather than the charge-offense method adopted in the Guidelines. Finally, appellant argues that the departure from the applicable guideline because of quantity will undermine uniformity in sentencing, one of the central purposes of the Guidelines, because each district court will apply its own "sliding scale" to telephone-count offenses, depending upon the amount of drugs involved.

Section 212(a)(2) of the Sentencing Reform Act of 1984, as amended, provides that a sentencing court can impose a sentence outside the range established by the applicable guideline, only if the court 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 in formulating the guidelines[.]" 18 U.S.C. Sec. 3553(b). Thus, in writing its "initial set" of Guidelines, the Commission recognized that "in principle ... by specifying that it had adequately considered a particular factor [it] could prevent a court from using [that factor] as grounds for departures." However, the Commission then specifically stated that, with some exceptions not relevant here, it did not intend to limit a sentencing court's departure power by foreclosing consideration of any factor. Thus, it stated:

The Commission has adopted this departure policy [of not limiting the factors a Court may consider] for two basic reasons. First is the difficulty of foreseeing and capturing a single set of guidelines that encompasses the vast range of human conduct potentially relevant to a sentencing decision. The Commission also recognizes that in the initial set of guidelines it need not do so. The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so, the Commission, over time, will be able to create more accurate guidelines that specify precisely where departures should and should not be permitted.

Sentencing Guidelines, Chapter One, Part A, Sec. 4(b) at pp. 1.6-1.7. ² Consistent with this approach, there is no place in the Guidelines where the Commission states that it has rejected quantity as a factor in sentencing telephone-count offenders.

The most applicable policy statement in the Guidelines also gives a district court wide discretion in determining which circumstances to take into account in departing from the Guidelines. Section 5K2.0, which deals with grounds for departing from the Guidelines, provides:

Circumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the court at the time of sentencing.... Any case may involve factors in addition to those identified that have not been given adequate consideration by the Commission. Presence of any such factor may warrant departure from the guidelines, under some circumstances, in the discretion of the sentencing judge. Similarly, the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate....

[A] factor may be listed as a specific offense characteristic under one guideline, but not under all guidelines. Simply because it was not listed does not mean that there may not be circumstances when that factor would be relevant to sentencing. For example, the use of a weapon has been listed as a specific offense characteristic under many guidelines, but not under immigration violations. Therefore, if a weapon is a relevant factor to sentencing for an immigration violation, the court may depart for this reason. (Emphasis supplied).

Appellant contends that his arguments to us are based upon familiar principles of statutory interpretation that we should follow, i.e., the "statute"--...