U.S. v. Florentino

• Decision Date: 28 December 1990
• Docket Number: No. 90-2020,90-2020
• Citation: 922 F.2d 1443
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angel FLORENTINO, a/k/a Jose Mesa, a/k/a Manuel Martinez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1443

922 F.2d 1443

UNITED STATES of America, Plaintiff-Appellee, v. Angel FLORENTINO, a/k/a Jose Mesa, a/k/a Manuel Martinez Defendant-Appellant.

No. 90-2020.

United States Court of Appeals Tenth Circuit.

Dec. 28, 1990.

William L. Lutz, U.S. Atty., and Charles L. Barth, Asst. U.S. Atty., Las Cruces, N.M., for plaintiff-appellee.

Richard C. Cauble, Las Cruces, N.M., for defendant-appellant.

Before HOLLOWAY, Chief Judge, MOORE, Circuit Judge, and BROWN, District Judge ^*.

HOLLOWAY, Chief Judge.

Defendant-appellant, Angel Florentino (hereinafter Florentino), challenges the sentence imposed upon him after his plea of guilty to a single count of transporting illegal aliens and aiding and abetting in violation of 8 U.S.C. Sec. 1324(a)(1)(B) and 18 U.S.C. Sec. 2. ¹ Florentino contends that the district court erred in double counting his prior convictions when it calculated his offense level and criminal history category under the Sentencing Reform Act of 1984. See 28 U.S.C. Sec. 994(a). He also objects to the court using the same prior convictions as a basis for sentencing him at the top of the applicable guideline range, thus effecting multiple counting. Our jurisdiction arises under 18 U.S.C. Sec. 3742(a).

We affirm.

Background

The facts in this case are straightforward and are not in dispute. On August 17, 1989, Florentino was driving a car accompanied by a van near a United States Border Patrol checkpoint on Interstate 10, Dona Ana County, New Mexico. Both vehicles were stopped by the Border Patrol and ten illegal aliens from the Republic of Mexico were found in the van. The van was driven by Florentino's co-defendant, who admitted that both vehicles were traveling together. In addition, Florentino stated that he was to receive $3,000 for transporting the aliens to California. On September 14, 1989, Florentino was indicted on four counts of transporting aliens but in return for his guilty plea, the government dismissed Counts II, III, and IV.

The probation officer calculated Florentino's base offense level at nine pursuant to Sec. 2L1.1 of the Guidelines, titled Smuggling, Transporting, or Harboring an Unlawful Alien. U.S.S.G. Sec. 2L1.1. That section permits the adjustment of the base offense level upon a finding of the following specific offense characteristics:

(1) If the defendant committed the offense other than for profit and without knowledge that the alien was excludable under 8 U.S.C. Sec. 1182(a)(27), (28), (29), decrease by three levels. (2) If the defendant previously has been convicted of smuggling, transporting, or harboring an unlawful alien, or a related offense, increase by two levels. (3) If the defendant is an unlawful alien who has been deported (voluntarily or involuntarily) on one or more occasions prior to the instant offense, and the offense level determined above is less than level 8, increase to level 8. ²

The Presentence Report indicated that Florentino had two prior convictions for illegally transporting aliens, which increased his offense level by two points from nine to eleven under Sec. 2L1.1(b)(2). This level was then decreased by two points to a total offense level of nine because Florentino accepted responsibility for his crime. U.S.S.G. Sec. 3E1.1.

Florentino's criminal history category was determined to be IV based on: (1) two prior felony convictions, and (2) the fact that he had committed the offense while on probation. Appellant's Brief at vii (citing Presentence Report at 6.) An offense level of nine at criminal history category IV subjected Florentino to a guideline range of twelve to eighteen months' imprisonment. See I R., doc. 18, at 2. The district judge determined that there was no need to hold an evidentiary hearing because there were no disputed facts. He sentenced Florentino to the maximum imprisonment term of eighteen months, plus two years of conditional supervised release, and a fifty dollar penalty assessment. II R. at 9-10.

I.

18 U.S.C. Sec. 3742(e) sets forth the standard for review of sentences imposed under the Guidelines. It provides:

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 applicable guideline range, 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 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 and shall give due deference to the district court's application of the guidelines to the facts.

Thus, while we review the factual findings of a district court under the clearly erroneous standard, and while we give due deference to the district court's application of the guidelines to the facts, when that application involves contested issues of law, we review de novo. United States v. Rutter, 897 F.2d 1558, 1560 (10th Cir.1990); United States v. Smith, 888 F.2d 720, 723 (10th Cir.1990). See also United States v. Roberts, 898 F.2d 1465, 1469 (10th Cir.1990) (when "the issue ... turns primarily on the legal interpretation of a guideline term, [or on] which of several offense conduct guidelines most appropriately apply to the facts as found, ... the standard moves closer to de novo review.") (quoting United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir.1989)). Here Florentino does not challenge the factual findings of the district court. He contends only that the trial judge misapplied Sec. 2L1.1 because his sentence was based on impermissible multiple-counting of his prior convictions. United States v. Reid, 911 F.2d 1456, 1461 (10th Cir.1990). See also United States v. Reyes-Ruiz, 868 F.2d 698, 701 (5th Cir.1989) (whether prior conviction falls within scope of Sec. 2L1.1(b)(2) is question of law reviewed de novo ).

Our research indicates that we have not yet addressed the sentence enhancement provision of Sec. 2L1.1(b)(2).

II.

Congress adopted the Guidelines "to enhance the ability of the criminal justice system to reduce crime through an effective, fair sentencing system." U.S.S.G. Manual, Ch. 1, Pt. A, intro. comment., at 1.2 (1989). Congress sought to achieve this goal by promoting three fundamental sentencing principles: honesty, uniformity and proportionality. Id. Accordingly, the Sentencing Commission has expressed a strong presumption in favor of using the Guidelines to advance those principles. See Id. at 1.5. See also 18 U.S.C. Sec. 3553(b) (imposition of sentence should be within guideline range unless appropriate mitigating or aggravating circumstances exist).

We have noted that because of the sentencing goals of uniformity and proportionality, judges should depart from the Guidelines range "only when necessary." United States v. Jackson, 921 F.2d 985, 989 (10th Cir.1990) (en banc). See United States v. Aquilar-Pena, 887 F.2d 347, 349 (1st Cir.1989). Furthermore, the Guidelines should be interpreted as if they were a statute or court rule; therefore we follow the clear, unambiguous language of the guidelines unless there is a manifestation of contrary intent. United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir.1990).

A.

We believe the language of Sec. 2L1.1 is clear and unambiguous and reflects the Sentencing Commission's intention to have prior convictions for transporting illegal aliens count towards increasing both a defendant's offense level and criminal history category. Application of Note 4 to the Section clearly states that "[t]he adjustment under Sec. 2L1.1(b)(2) for a previous conviction is in addition to any points added to the criminal history score for such conviction in Chapter Four, Part A (Criminal History)." U.S.S.G. Sec. 2L1.1(b)(2) comment (n. 4) (emphasis added). In addition, the Background to Sec. 2L1.1 emphasizes that crimes for which sentences are discussed in this section are especially serious and advocates sentence enhancement for prior convictions. It states in relevant part:

This section includes the most serious immigration offenses covered under the Immigration Reform and Control Act of 1986.... A second specific offense characteristic provides an enhancement if the defendant was previously convicted of a similar offense. See U.S.S.G. Sec. 2L1.1, comment (backg'd).

Further evidence of the seriousness with which the Sentencing Commission views these offenses is found at Sec. 3D1.2. This section of the Guidelines provides for the grouping of certain types of offenses and some amelioration in sentencing for them. "In essence, counts that are grouped together are treated as constituting a single offense for purposes of the guidelines." Part D-Multiple Counts, Introductory Commentary. Offenses such as transporting unlawful aliens covered by Sec. 2L1.1 are classified with offenses which are specifically excluded from the grouping process.

We conclude that the sentencing judge properly applied the express terms of Sec. 2L1.1(b)(2) when he increased Florentino's offense level by two points because of his two prior convictions for transporting illegal aliens. The judge also acted correctly when he followed the express language of Note 4, Sec. 2L1.1(b)(2) in considering the same convictions again for sentence enhancement purposes by adding five points to Florentino's criminal history category. U.S.S.G. Sec. 2L1.1(b)(2), comment. (n. 4). See also United States v. Martinez-Perez, 916 F.2d 1020, 1025 (5th Cir.1990) (prior convictions for transporting aliens increase both offense level and criminal...