U.S. v. Martinez-Gonzalez, MARTINEZ-GONZALE

• Decision Date: 07 April 1992
• Docket Number: MARTINEZ-GONZALE,D,No. 90-50561,90-50561
• Citation: 962 F.2d 874
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Justinaefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 874

962 F.2d 874

UNITED STATES of America, Plaintiff-Appellee, v. Justina MARTINEZ-GONZALEZ, Defendant-Appellant.

No. 90-50561.

United States Court of Appeals, Ninth Circuit.

Submitted April 7, 1992. ^*

Decided April 20, 1992.

As Amended May 5, 1992.

Michael L. Crowley, San Diego, Cal., for defendant-appellant.

Judith S. Feigin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: BOOCHEVER, NORRIS, and NOONAN, Circuit Judges.

BOOCHEVER, Circuit Judge:

Justina Martinez-Gonzalez appeals her sentence of 27 months imposed following conviction on a guilty plea to conspiracy to transport and harbor illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B) & (C) and 18 U.S.C. § 371. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

I.

Martinez-Gonzalez argues that the district court erred in departing upward by two levels from her base offense level of thirteen due to the sophistication of her smuggling organization and the large numbers of aliens involved.

In United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc), this court set forth a three-part test for evaluating a district court's decision to depart from the applicable Sentencing Guidelines range. First, we review de novo whether the district court had legal authority to depart. Id. at 746. Second, we review for clear error the factual findings supporting the existence of the identified circumstance. Id. Third, we review for abuse of discretion whether the degree of departure was reasonable within the meaning of 18 U.S.C. § 3742(e)(3) and (f)(2). Id. at 747.

A district court is authorized to depart from the applicable Guideline range if it identifies an aggravating circumstance that was not adequately considered by the Commission. Id. at 746. The Commentary to the Guidelines informs us that "[t]he Commission has not considered offenses involving large numbers of aliens or dangerous or inhumane treatment. An upward departure should be considered in those circumstances." U.S.S.G. § 2L1.1, comment. (n. 8). The court here stated that its upward departure was based on "the length [of time of the conspiracy], the sophistication, and the large number of aliens that went through this particular organization." Excerpts of Record (E.R.) at 37. Hence, it identified aggravating circumstances which could provide a proper basis for an upward departure.

Contrary to Martinez-Gonzalez' contention, a district court is not required to find both a large number of aliens and dangerous or inhumane treatment of aliens for the purpose of departing upward. The Commentary plainly uses the disjunctive "or" rather than the conjunctive "and," thereby indicating that each clause is to be given separate meaning. See Garcia v. United States, 469 U.S. 70, 73, 105 S.Ct. 479, 481, 83 L.Ed.2d 472 (1984). Nor is there any support for the proposition that the large number of aliens must be transported in one trip. Cf. United States v. Nuno-Huizar, 863 F.2d 36, 38 (9th Cir.1988) (per curiam) (observing that court would have affirmed an upward departure based on a sophisticated scheme moving large numbers of aliens over a period of time) (dicta).

Turning to the second step of the Lira-Barraza test, the record amply supports the district court's finding that a large number of aliens were involved. According to the Presentence Report (PSR), at least 146 illegal aliens were transported in connection with the appellant's activities between January 24 and March 2, 1990. See PSR at 1-7. We find that this constitutes "large numbers of aliens" for the purpose of an upward departure under U.S.S.G. § 2L1.1. See, e.g., United States v. Lopez-Escobar, 884 F.2d 170, 171, 173 (5th Cir.1989) (observing that thirty-five aliens was an "extraordinary number of aliens" and warranted an upward departure).

Finally, we find that the extent of the departure from the Guidelines was reasonable. "Reversal is required only if the choice [of a departure sentence] is 'unreasonable' in light of the standards and policies incorporated in the Act and the Guidelines." Lira-Barraza, 941 F.2d at 751.

Within criminal history category II, Martinez-Gonzalez' sentence was increased from an offense level of thirteen, with a Guidelines range of 15 to 21 months, to level fifteen, with a range of 21 to 27 months. At the sentencing hearing, the judge carefully stated her reasons for this departure. She first observed that the "very sophisticated" smuggling organization was "extensive and large," as well as "well organized and efficient." She supported her conclusions by noting: 1) that drivers brought persons across the border on numerous occasions to Martinez-Gonzalez' home, which operated as a drop house, 2) that Martinez-Gonzalez arranged for further transportation of the aliens north, and 3) that she also arranged for the aliens' safekeeping in both San Diego and Los Angeles. The judge also referred to the numerous trips and some of the large numbers of aliens involved. Based on the court's statements, we cannot say that the court abused its discretion in departing upward by two levels.

In reviewing the reasonableness of the extent of departure, we also find a useful structural analogy in the numerous Guidelines offenses requiring a two-level increase in the base offense level if "more than minimal planning" is involved. See, e.g., U.S.S.G. § 2A2.1(b)(1) (assault with intent to commit murder); § 2B1.1(b)(4) (larceny, embezzlement and other forms of theft); § 2B1.2(b)(3)(B) (receiving, transporting or transmitting stolen property); U.S.S.G. § 2F1.1(b)(2) (fraud). "More than minimal planning" is generally deemed present in any case involving repeated acts over a period of time. See U.S.S.G. § 1B1.1, comment. (n. 1(f)). Because the large numbers of aliens transported over a period of time and the sophistication of the smuggling organization are offense characteristics suggesting "more than minimal planning," we find the two-level departure to be reasonable.

II.

Martinez-Gonzalez also argues that the district court erred in departing upward pursuant to U.S.S.G. § 4A1.3, on the grounds that criminal history category I did not adequately reflect the seriousness of her past criminal conduct. Citing two previous arrests for smuggling aliens, the district court found that criminal history category II more accurately reflected Martinez-Gonzalez' criminal history.

Appellant first contends that she did not have adequate notice that her criminal history category would be increased because the PSR Addendum recommending the increase was filed three days prior to sentencing. We find this contention lacks merit. In its opposition to the PSR, the Government argued that category II more accurately reflected the appellant's past criminal conduct than the PSR's recommendation of category I. This opposition was filed on July 27, 1990, ten days prior to sentencing. Yet Martinez-Gonzalez failed to raise any objections to this argument when she responded to the Government's opposition on July 30, 1990. Nor did she challenge the court's upward departure to category II at sentencing or ask for a continuance for the purpose of responding to the PSR Addendum, after she learned of the probation officer's revised recommendation of an upward departure to category II. Under these circumstances, we find that the appellant had sufficient notice of the possible departure. Cf. United States v. Brady, 928 F.2d 844, 846-48 (9th Cir.1991) (sentence cannot be enhanced beyond range stated in PSR because the PSR and the sentencing court did not provide notice to defendant about the possible bases for departure).

Because Martinez-Gonzalez failed to raise below the issue of the departure in her criminal history category, we review the court's decision for plain error. See United States v. Anderson, 850 F.2d 563, 566 n. 2 (9th Cir.1988). While arrests that do not result in convictions may not be considered in determining a defendant's criminal history category, see U.S.S.G. § 4A1.1, "prior similar adult criminal conduct not resulting in a criminal conviction" may be considered for the purpose of upward departure if such category underrepresents past criminal conduct. U.S.S.G. § 4A1.3(e). Cf. United States v. Cota-Guerrero, 907 F.2d 87, 90 (9th Cir.1990) (reversed conviction cannot be considered to calculate criminal history score, but can be considered to depart upward under § 4A1.3 if it provides reliable evidence of past criminal activity). The use of aliases during arrests may also justify an upward departure on the basis of underrepresented criminal history. United States v. Montenegro-Rojo, 908 F.2d 425, 428-29 (9th Cir.1990). See also United States v. Rodriguez-Castro, 908 F.2d 438, 442 (9th Cir.1990) ("repeated use of fictitious names" is conduct "not adequately considered by the Commission and ... a justifiable ground for departure.") In considering an upward departure based on the inadequacy of a criminal history score, the court should " 'use, as a reference, the guideline range for a defendant with a higher ... criminal history category.' " United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir.1989) (quoting U.S.S.G. § 4A1.3, p.s.). Thus, in the case of previous similar arrests in which aliases were used, the extent of upward departure could be measured by the change that would have occurred in the criminal history category because of convictions that would likely have occurred in the absence of the use of aliases.

We find no plain error in the district court's application of U.S.S.G. § 4A1.3. The court's assumptions about the appellant's use of aliases do not constitute plain error, given that Martinez-Gonzalez admitted to the probation officer preparing the PSR that she had used aliases when arrested to avoid criminal prosecution. We are more concerned that the record is unclear whether the alien smuggling...