U.S. v. Garcia

• Decision Date: 30 November 1990
• Docket Number: No. 89-2193,89-2193
• Citation: 919 F.2d 1478
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Arturo GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1478

919 F.2d 1478

UNITED STATES of America, Plaintiff-Appellee, v. Jesus Arturo GARCIA, Defendant-Appellant.

No. 89-2193.

United States Court of Appeals, Tenth Circuit.

Submitted on the Briefs.

Decided Nov. 30, 1990.

James B. Foy, Silver City, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty., and Rhonda P. Backinoff, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff-appellee.

Before LOGAN and EBEL, Circuit Judges, and BROWN, District Judge. ^*

LOGAN, Circuit Judge.

Defendant Jesus Arturo Garcia was indicted on three counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). He pleaded guilty to count I of the indictment, and counts II and III were dismissed on motion of the government. Under United States Sentencing Guidelines Sec. 2L1.1(a), the base offense level for defendant's crime was nine. After receiving a two point reduction for accepting responsibility, defendant had a net offense level of seven. Under the Guidelines, since he had a criminal history category of I, the appropriate sentencing range was from one to seven months. ¹

At the sentencing hearing, defendant asked to be sentenced to time served, the three months he had been incarcerated awaiting trial. Noting that defendant had a thirteen year old felony conviction not reflected in the criminal history category, that he was transporting three illegal aliens at the time of his arrest, and that he had obtained birth documents under an alias, the district court rejected his request and sentenced him to seven months imprisonment.

Defendant now appeals, arguing that the district court improperly sentenced him to the top of the guideline range. Although defendant concedes that he was placed in the proper offense and criminal history categories, and that his sentence falls within the appropriate guideline range, defendant challenges two of the district court's reasons for imposing a seven month sentence. He argues that in passing sentence the district court improperly considered his prior criminal conviction and his transportation of three illegal aliens at the time of his arrest.

In response, the government argues that defendant's appeal is moot because he already has served his entire seven month sentence. ² Alternatively, the government argues that we lack jurisdiction to consider defendant's appeal under 18 U.S.C. Sec. 3742(a). Because we conclude that defendant's challenges to his sentence are not reviewable under Sec. 3742(a), we do not reach the mootness claim.

A defendant's right to appeal a sentence imposed by a federal court is governed by 18 U.S.C. Sec. 3742(a). Under that section, a sentence within the Guidelines may not be appealed unless imposed in violation of law, or as a result of an incorrect application of the Guidelines. 18 U.S.C. Sec. 3742(a)(1)-(2); ³ United States v. Havens, 910 F.2d 703, 706-07 (10th Cir.1990); United States v. Richardson, 901 F.2d 867, 870 (10th Cir.1990); United States v. Davis, 900 F.2d 1524, 1530 (10th Cir.1990).

Interpreting Sec. 3742(a), we have previously concluded that it does not allow appeals " 'because of a claim that a particular sentence is draconian.' " Richardson, 901 F.2d at 870 (quoting United States v. Guerrero, 894 F.2d 261, 267 (7th Cir.1990)). We similarly have held that it does not allow appeals challenging a district court's alleged abuse of discretion in refusing to make a downward departure from the Guidelines. Havens, 910 F.2d at 706-07; United States v. Lowden, 905 F.2d 1448, 1449 (10th Cir.1990); Richardson, 901 F.2d at 870; Davis, 900 F.2d at 1528, 1529-30. Defendant, however, makes neither of these arguments; rather, he contends that the district court relied on improper factors in sentencing him to the top of the concededly appropriate sentencing range. Thus, we must decide whether Sec. 3742(a) permits a defendant to challenge the reasons underlying a district court's decision to impose sentence at a particular point within the Guidelines.

At least three circuits have considered whether a defendant may appeal a district court's decision to impose sentence at a particular point within the Guidelines. See United States v. Reed, 914 F.2d 1288 (9th Cir.1990); United States v. Braslawsky, 913 F.2d 466 (7th Cir.1990); United States v. Dugan, 912 F.2d 942 (8th Cir.1990). With little analysis, each of these courts has concluded broadly that such sentences may not be reviewed. See Reed, 914 F.2d at 1290 (appellate courts lack jurisdiction to review sentences within Guidelines); Braslawsky, 913 F.2d at 467 (same); Dugan, 912 F.2d at 944 (sentence within Guidelines is not reviewable on appeal). Although we conclude that the instant defendant has failed to state a cognizable basis for appealing his sentence under Sec. 3742(a), we believe the jurisdictional issue requires a more precise analysis.

A federal court always has jurisdiction to determine whether it has jurisdiction. See Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir.1990); 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction Sec. 3536 (2d ed. 1984). When a defendant alleges that a sentence within the Guidelines was imposed in violation of law or as a result of an incorrect application of the Guidelines, he has invoked, prima facie, our authority to review the appeal. But we must look beyond his invocation of the magic words to consider whether the complaint he makes is indeed reviewable under 18 U.S.C. Sec. 3742(a)(1)-(2).

The Second Circuit recently interpreted Sec. 3742(a)(2) in United States v. Colon, 884 F.2d 1550 (2nd Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 553, 107 L.Ed.2d 550 (1989). Holding that a defendant could not appeal a district court's refusal to depart downward from the applicable sentencing range, the Colon court recognized that Sec. 3742(a)(2)'s "incorrect application" language conceivably could be read to permit appeals based on a claim that a sentence concededly within the Guidelines was too high or too low. Rejecting this interpretation, the Colon court concluded that Sec. 3742(a)(2) was "intended to authorize appeals from sentences purportedly within the Guidelines only for claims that a sentence was incorrectly calculated or was based on clearly erroneous factual findings concerning offender/offense levels, characteristics or adjustments." Colon, 884 F.2d at 1554. We are in substantial agreement. There is a very thin line between sentences appealable as incorrect applications of the Guidelines and those appealable as in violation of law. Clearly erroneous factual findings implicate constitutional due process concerns. Reasons for the sentence that are facially illegal--such as race, gender, or considerations contravening clearly established public policy--may be incorrect applications of the sentencing guidelines, see U.S.S.G. Sec. 5H1.10, but also are appealable as in violation of law. See, e.g., Colon, 884 F.2d at 1553 (sentence within Guidelines that is in excess of statutory maximum, based on constitutionally impermissible considerations, or the result of a demonstrable error of law is appealable under Sec. 3742(a)(1)).

Sometimes the task of determining jurisdiction is little different from deciding the merits of the appeal. So it is here. Defendant first argues that the district court "misused the criminal history category" and violated Guidelines Sec. 4A1.2(e) by considering a thirteen year old criminal conviction. Section 4A1.2(e), however, only addresses what prior convictions may be counted for purposes of computing a defendant's criminal history category. Defendant admits that his criminal history category was properly calculated; thus any consideration of the prior conviction by the sentencing judge had to be only in determining where within the appropriate guideline range defendant should be sentenced.

Defendant's other argument is that the district court should not have considered his transportation of three illegal aliens at the time of his arrest. Pointing to the application notes to Guidelines Sec. 2L1.1, defendant asserts that a sentencing court may only consider such a factor if an offense involves the smuggling of a "large number" of illegal aliens. Once again, this is a misinterpretation of the Guidelines. The application notes to Sec. 2L1.1 provide that a court should consider an upward departure if a defendant transports a large number of illegal aliens. See U.S.S.G. Sec. 2L1.1, comment (n. 8). There was no upward departure here. The court only considered this factor in determining where within the Guidelines to impose sentence. Accordingly, the district court did not misapply the Guidelines, and defendant may not appeal his sentence under Sec. 3742(a)(2).

The Guidelines themselves, and the legislative history of Sec. 3742 and related statutes, support our conclusion that Sec. 3742(a)(1) and (2) provide very narrow exceptions to the general rule that sentences falling within the Guidelines are not appealable. Review of the reasons underlying a district court's decision to impose sentence at a particular point within a proper guideline range other than for facial illegality, improper calculations, or clearly erroneous fact findings seems contrary to the very concept of a guideline system. As the Second Circuit has noted: "Sentences within the Guidelines may be deemed to be reasonable and within the exclusive discretion of the sentencing court solely because of the Commission's blessing of the permissible range." Colon, 884 F.2d at 1555. The introduction to the Guidelines stresses an intent "to permit courts the greatest possible range for exercising discretion," and "to minimize the likelihood of unnecessary litigation." U.S.S.G. ch. 1 Pt. A 4(h). Under U.S.S.G. Sec. 1B1.4, a district court may consider, "without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. Sec. 3661." ⁴ The commentary...