U.S. v. Lopez-Cavasos, LOPEZ-CAVASO

• Decision Date: 25 September 1990
• Docket Number: LOPEZ-CAVASO,Nos. 89-30022,89-30063,D,s. 89-30022
• Citation: 915 F.2d 474
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joelefendant-Appellant. UNITED STATES of America, Plaintiff-Appellant, v. Joelefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 474

915 F.2d 474

UNITED STATES of America, Plaintiff-Appellee, v. Joel LOPEZ-CAVASOS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellant, v. Joel LOPEZ-CAVASOS, Defendant-Appellee.

Nos. 89-30022, 89-30063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 1989.

Submission Withdrawn June 22, 1990.

Resubmitted July 13, 1990.

Decided Sept. 25, 1990.

Terry J. Lopez, Lopez & Lopez, Caldwell, Idaho, for defendant-appellant-cross-appellee.

Kim R. Lindquist, Asst. U.S. Atty., Boise, Idaho, for plaintiff-appellee-cross-appellant.

Appeal from the United States District Court for the District of Idaho.

Before WALLACE and NELSON, Circuit Judges, and WILSON, ^* District Judge.

WALLACE, Circuit Judge:

Lopez-Cavasos appeals his sentence, following a guilty plea, for supplying false documents to an alien for use in applications for adjustment of status under the Immigration and Nationality Act, in violation of 8 U.S.C. Sec. 1160(b)(7)(A)(ii). The government cross-appeals and argues that the fine imposed on Lopez-Cavasos is insufficient because it does not reflect, pursuant to section 5E1.2(c)(2) of the United States Sentencing Commission Guidelines (Guidelines), the amount of profit Lopez-Cavasos made from his criminal activity. The district court exercised jurisdiction pursuant to 8 U.S.C. Sec. 1160(b)(7)(A)(ii) and 18 U.S.C. Sec. 3231. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. Sec. 1291. We affirm.

I

Lopez-Cavasos was indicted on nine counts of supplying false documents for use in applications for adjustment of status under the Immigration and Nationality Act, in violation of 8 U.S.C. Sec. 1160(b)(7)(A)(ii), and one count of encouraging an alien to enter the United States illegally, in violation of 8 U.S.C. Sec. 1324(a)(1)(D). Pursuant to a plea agreement, Lopez-Cavasos pleaded guilty to one count of supplying false documentation. All of the other counts were dismissed.

Lopez-Cavasos's presentence report recommended a total offense level of eleven (11) and a criminal history category of two (II), resulting in a Guidelines imprisonment range of 10 to 16 months. The presentence report also concluded that based on the total offense level of 11, the fine range was $2,000 to $20,000 pursuant to the table in Guidelines section 5E1.2(c)(3).

Neither Lopez-Cavasos nor the government objected to the presentence report. Lopez-Cavasos also failed to object at the sentencing hearing. The government, however, argued at the sentencing hearing that pursuant to section 5E1.2(c)(2) Lopez-Cavasos should be fined in excess of the $20,000 maximum provided in the table at section 5E1.2(c)(3) because he had enjoyed significant pecuniary gains from his crime. The government offered evidence regarding Lopez-Cavasos's pecuniary gain. The district court, however, rejected the government's offer because of the government's failure to object to the presentence report. The court then sentenced Lopez-Cavasos to a 16 month period of incarceration and ordered him to pay the maximum fine within the range specified in the presentence report, $20,000. Lopez-Cavasos's appeal and the government's cross-appeal followed.

II

Lopez-Cavasos contends that the district court erred in computing his criminal history score. Lopez-Cavasos, however, failed to raise this issue in the district court: he did not object to the presentence report, and he failed to raise his objection at the sentencing hearing.

Because he failed to object in the district court, we review Lopez-Cavasos's sentence under the plain error standard. See United States v. Anderson, 850 F.2d 563, 566 n. 2 (9th Cir.1988) ("Imposition of an erroneous sentence may be reviewed for plain error."); United States v. Morris, 827 F.2d 1348, 1352 (9th Cir.1987) (Morris), cert. denied, 484 U.S. 1017, 108 S.Ct. 726, 98 L.Ed.2d 675 (1988); United States v. Ebertowski, 896 F.2d 906, 907 (5th Cir.1990); United States v. Atehortua, 875 F.2d 149, 151 (7th Cir.1989); Fed.R.Crim.P. 52(b). "A plain error is 'a highly prejudicial error affecting substantial rights.' " Morris, 827 F.2d at 1350, quoting United States v. Sherman, 821 F.2d 1337, 1339 (9th Cir.1987) (Sherman).

Lopez-Cavasos raises two arguments relating to his criminal history score. He first contends that the district court improperly added one criminal history point for a previous willful concealment conviction for which he was sentenced to two days in jail and ordered to pay a $50.00 fine. He asserts that pursuant to Guidelines section 4A1.2(c), this conviction should not be counted because it is "similar to" the excluded offenses listed at section 4A1.2(c)(1). See United States v. Martinez, 905 F.2d 251, 253-54 (9th Cir.1990) (interpreting the meaning of the phrase "similar to" in section 4A1.2(c)(2)). We need not resolve the question whether a willful concealment conviction is similar to the excluded offenses listed at section 4A1.2(c)(1), because even if we determined that it was and that one point should be subtracted from Lopez-Cavasos's criminal history score, it would not affect his sentence. The district court calculated Lopez-Cavasos's criminal history score to be three, placing him in criminal history category II. If one point were subtracted from his criminal history score, Lopez-Cavasos would still fall within criminal history category II and his guideline range would still be 10-16 months. Therefore, even if the district court had erred, it could not have been "a highly prejudicial error affecting substantial rights." Morris, 827 F.2d at 1350. We therefore reject Lopez-Cavasos's argument that counting his willful concealment conviction in his criminal history score constituted plain error.

Lopez-Cavasos also contends that the district court should have departed downward from the applicable Guideline range pursuant to section 4A1.3 because his criminal history category of II overrepresents the actual seriousness of his criminal history. Aside from the fact that the district judge was not requested to do so, the failure to depart downward is not an issue we review. United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990) (holding that "a district court's discretionary refusal to depart downward from the sentencing guidelines" is not reviewable on appeal); United States v. Williams, 898 F.2d 1400, 1403-04 (9th Cir.1990) (same).

III

We next address the government's contention that Lopez-Cavasos should be fined without regard to the maximum $20,000 fine range specified in the presentence report because of the significant pecuniary gains he enjoyed as a result of his crime.

Like Lopez-Cavasos, the government failed to raise this argument as an objection to the presentence report. However, unlike Lopez-Cavasos, the government did raise this contention by objecting at the sentencing hearing. This fact, nevertheless, does not immediately open the door to our inspection of the merits of the government's argument, because the district court, itself, refused to entertain that argument at the sentencing hearing due to the government's failure to object to the presentence report. Thus, before we may address the merits of the government's argument, we must first decide the narrow question whether the district court erred in rejecting the government's contention because of the government's failure to object to the presentence report.

The Guidelines chapter on sentencing procedures provides that "[c]ourts should adopt procedures to provide for the timely disclosure of the presentence report; the narrowing and resolution, where feasible, of issues in dispute in advance of the sentencing hearing; and the identification for the court of issues remaining in dispute." United States Sentencing Commission, Guidelines Manual, Sec. 6A1.2 (Nov. 1989) (U.S.S.G.); see also id. at Sec. 6A1.2, comment. (backg'd) ("In order to focus the issues prior to sentencing, the parties are required to respond to the presentence report and to identify any issues in dispute.") (emphasis added). Adhering to the message of the Guidelines, the local rules for the United States District Court for the District of Idaho require the parties to lodge their objections to the presentence report prior to the sentencing hearing. The district court's local rule provides, in part:

(2) Not less than twenty days (20) prior to the date set for sentencing, the probation officer shall disclose the presentence investigation report to the defendant and to counsel for the defendant and the government. Within ten (10) days thereafter, counsel shall communicate to the probation officer any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report.

(3) After receiving counsel's objections, the probation officer shall conduct any further investigation and make any revisions to the report that may be necessary....

(4) Prior to the date of the sentencing hearing, the probation officer shall submit the presentence report to the sentencing judge. The report shall be accompanied by an addendum setting forth any objections counsel may have made that have not been resolved....

(5) Except with regard to any objection made under subdivision (a) that has not been resolved, the report of the presentence investigation may be accepted as accurate. The court, however, for good cause shown, may allow a new objection to be raised at any time before the imposition of the sentence.

United States District Court, District of Idaho, Local Rule 3-109 (effective January 1, 1988). The import of the local rule is clear: if counsel fail to "communicate to the probation officer any objections they may have as to any material information, sentencing classifications, sentencing guideline ranges, and policy statements contained in or omitted from the report, ... the report of the presentence investigation may be accepted as...