U.S. v. Dominguez-Carmona

• Decision Date: 04 January 1999
• Docket Number: DOMINGUEZ-CARMON,97-2202,D,97-2234 and 97-2258,Nos. 97-2197,s. 97-2197
• Parties: 1999 CJ C.A.R. 1276 UNITED STATES of America, Plaintiff-Appellant, v. Octavioefendant-Appellee. United States of America, Plaintiff-Appellant, v. Jorge Hernandez-Villanueva, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jose Rubio-Loya, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Francisco Romo-Medina, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Ramon Gutierrez-Treviso, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Daniel Medrano-Parra, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Orlando Sandoval-Rascon, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Anastasio Corral-Gutierrez, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Gabriel Durazo-Martinez, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Hector Ceballos-Adete, Defendant-Appellee. to 97-2264.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1052

166 F.3d 1052

1999 CJ C.A.R. 1276

UNITED STATES of America, Plaintiff-Appellant, v. Octavio DOMINGUEZ-CARMONA, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Jorge Hernandez-Villanueva, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Jose Rubio-Loya, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Francisco Romo-Medina, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Ramon Gutierrez-Treviso, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Daniel Medrano-Parra, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Orlando Sandoval-Rascon, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Anastasio Corral-Gutierrez, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Gabriel Durazo-Martinez, Defendant-Appellee.

United States of America, Plaintiff-Appellant, v. Hector Ceballos-Adete, Defendant-Appellee.

Nos. 97-2197, 97-2202, 97-2234 and 97-2258 to 97-2264.

United States Court of Appeals Tenth Circuit.

Jan. 4, 1999.

Jason Bowles, Assistant United States Attorney (John J. Kelly, United States Attorney and Alfred J. Perez, Assistant United States Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellant.

Barbara A. Mandel, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with her on the brief), Las Cruces, New Mexico, and Charles Harwood, Silver City, New Mexico, for Defendant-Appellee Octavio Dominguez-Carmona.

Robert J. McDowell, Assistant Federal Public Defender, Las Cruces, New Mexico, on the brief, for Defendant-Appellee Jorge Hernandez-Villanueva.

Carmen E. Garza, Las Cruces, New Mexico, on the brief, for Defendants-Appellees, Jose Rubio-Loya, Francisco Romo-Medina, Ramon Gutierrez-Treviso, Daniel Medrano-Parra, Orlando Sandoval-Rascon, Anastasio Corral-Gutierrez, Gabriel Durazo-Martinez and Hector Ceballos-Adete.

Before BALDOCK, BRISCOE, and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Under U.S.S.G. § 5K2.0, a sentencing court may depart downward and impose a sentence outside the applicable guideline range where "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 that should result in a sentence different from that described." This appeal requires us to determine whether the district court abused its discretion when it departed downward pursuant to § 5K2.0 and sentenced Defendants, Mexican citizens who carried backpacks full of marijuana into the United States, based on the amount of drugs contained in their respective individual backpacks, their socioeconomic status, and their lack of sophistication. Defendants argue that the government's appeals are moot because they have served their sentences and been deported to Mexico. Our jurisdiction arises under 28 U.S.C. § 1291. Concluding that the appeals are not moot and that the sentences the district court imposed are plainly contrary to the sentencing guidelines, we reverse and remand for further proceedings.

I.

Defendants are Mexican citizens. In October and November, 1997, individual drug smugglers recruited Defendants to carry backpacks of marijuana across the border from Mexico into the United States. The smugglers instructed Defendants to meet in specified locations with several other persons recruited for the same purpose. Defendants each agreed to carry backpacks across the border and turn over the contents to a United States contact. Defendants carried the marijuana across the border. Border Patrol agents observed Defendants and attempted to apprehend them. Although a number of the "backpackers" escaped, Border Patrol agents apprehended Defendants and seized their backpacks and the backpacks abandoned by other group members who fled.

Defendants subsequently pled guilty to importing marijuana in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 960(b)(2) and possessing with intent to distribute over 100 kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Under the plea agreement, the government stipulated that Defendants were entitled to three-level reductions for acceptance of responsibility, four-level reductions for having only a minimal role in the offense and two-level reductions under U.S.S.G. § 5C1.2's "safety valve" provision. At sentencing, Defendants requested that the court depart further downward on the basis that only the amount of marijuana contained in their individual backpacks were attributable to them for sentencing purposes. The government strenuously objected to any further departure, arguing that any further departure would be contrary to the sentencing guidelines. Over the government's objection, the district court departed downward under U.S.S.G. § 5K2.0 and sentenced each Defendant to twelve-months imprisonment. ¹ The government appeals the sentences.

II.

Defendants move to dismiss the government's appeals for lack of subject matter jurisdiction. Specifically, Defendants argue that because their sentences are complete and they have been deported to Mexico, the government's appeals are moot. Accordingly, we must determine whether we have jurisdiction to proceed to the merits of the appeals.

The mootness doctrine derives from Article III's requirement that federal courts decide only actual cases between litigants. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). A case becomes moot when events occur which resolve the controversy underlying it. Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). In such a situation, a federal court decision provides no resolution between the parties to the lawsuit and therefore, constitutes a constitutionally impermissible advisory opinion. See e.g., United Public Workers of America v. Mitchell, 330 U.S. 75, 78, 67 S.Ct. 556, 91 L.Ed. 754 (1947).

Situations arise, however, where even though a favorable federal court decision will not resolve a plaintiff's primary injury, a collateral injury remains which a federal court decision may remedy. In Sibron v. New York, 392 U.S. 40, 56, 88 S.Ct. 1889, 1899, 20 L.Ed.2d 917 (1968), the Supreme Court explained that criminal appeals are moot only where dismissing the case as moot will have no "collateral legal consequences" upon the defendant. Prior to the introduction of the sentencing guidelines, federal courts generally dismissed as moot, appeals attacking sentences which defendants already served. E.g., North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). These decisions rest on the notion that no collateral consequences attach to an already served sentence. See id. Under the sentencing guidelines, however, the length of an already served sentence may serve to enhance sentences imposed for future crimes. See U.S.S.G. § 4A1.1. We have held that, in light of the guidelines, an appeal of an already completed sentence is not moot if there is any possibility that the length of the disputed sentence may affect the duration of any future sentence. United States v. Chavez-Palacios, 30 F.3d 1290, 1293 (10th Cir.1994); accord United States v. Cottman, 142 F.3d 160, 165 (3d. Cir.1998); United States v. Kassar, 47 F.3d 562, 565 (2d Cir.1995); United States v. Fadayini, 28 F.3d 1236, 1241 (D.C.Cir.1994); United States v. Dickey, 924 F.2d 836, 838 (9th Cir.1991).

Defendants' contention that the appeals are moot because they have completed the sentences imposed by the district court is incorrect. Pursuant to the sentencing guidelines, Defendants each received two criminal history points as a result of the twelve-month sentences the district court imposed. If, as the government argues, the district court should have sentenced each Defendant to twenty-four months, Defendants should have received three criminal history points. See U.S.S.G. § 4A1.1(a). Because the length of the sentence imposed in this case will affect the computation of criminal history points for any future federal sentences which Defendants may receive, collateral consequences exist and the appeals are not moot. E.g., Chavez-Palacios, 30 F.3d at 1293.

Moreover, to the extent Defendants contend that their deportation prevents us from granting effective relief to the government if it prevails on appeal, we reject that argument as well. In United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983), a jury convicted two foreign nationals of drug smuggling. On appeal, the Second Circuit reversed their convictions based upon a perceived Fourth Amendment violation. The government successfully filed a petition for certiorari with the Supreme Court but did not obtain a stay of the mandate. Accordingly, while the case was pending before the Supreme Court, the defendants were released from custody and deported. The defendants argued that their deportation mooted the matter. The Court concluded that because defendants could be extradited and imprisoned for their crimes or could re-enter this country on their own and be subject to arrest and imprisonment, their deportation did not render the case moot.

If the government is successful in this appeal, it could seek to have Defendants extradited ² or they could re-enter the country on their own. In either situation, Defendants would be subject to arrest and imprisonment for the remainder of their sentences. Accordingly, we reject Defendants' argument that we cannot grant effective relief if the government prevails in this appeal.

III.

Prior to the advent of the sentencing guidelines, federal district judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). This discretion led to a public perception that ...