U.S. v. Molina

• Decision Date: 07 January 1992
• Docket Number: No. 90-3261,90-3261
• Citation: 952 F.2d 514,293 U.S. App. D.C. 158
• Parties: UNITED STATES of America, Appellee, v. Miguel MOLINA, a/k/a Juan Menchaca-Gonzalez, Roberto Ramirez-Perez, Miguel Molina-Casarez, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 514

952 F.2d 514

293 U.S.App.D.C. 158

UNITED STATES of America, Appellee, v. Miguel MOLINA, a/k/a Juan Menchaca-Gonzalez, Roberto Ramirez-Perez, Miguel Molina-Casarez, Appellant.

No. 90-3261.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 11, 1991.

Decided Jan. 7, 1992.

Appeal from the United States District Court for the District of Columbia (Criminal No. 90-0290-01).

Catherine A. Brown, Washington, D.C., (appointed by the Court) for appellant.

J. Patrick Rowan, Asst. U.S. Atty., for appellee. Jay B. Stephens, U.S. Atty., and John R. Fisher, Roy W. McLeese, III and P. Kevin Carwile, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before EDWARDS and SILBERMAN, Circuit Judges, and VAN GRAAFEILAND, ^* Circuit Judge, United States Court of Appeals for the Second Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Miguel Molina appeals from an enhanced sentence imposed upon him following his plea of guilty to a one-count indictment charging illegal entry into the United States. Based upon Molina's criminal record, the District Court departed from the sentencing range of 24-30 months prescribed by the United States Sentencing Guidelines ("Guidelines") and imposed a sentence of 60 months' incarceration followed by three years of supervised release--the maximum penalty permitted by statute.

On the record before us, we find that the District Court relied upon impermissible factors in deciding to depart from the Guidelines; we also find that the trial court failed to justify adequately the extent of the departure. Accordingly, we vacate the sentence imposed and remand for resentencing. We further direct the District Court to consider on remand an ex post facto question that is apparent on the record of this case.

I. BACKGROUND

In late May of 1990, the Immigration and Naturalization Service learned that Miguel Molina was incarcerated in the District of Columbia jail on a charge of attempted burglary. A computer check of Molina's fingerprints revealed that he was an illegal alien who previously had been convicted of at least one felony offense. When confronted, Molina admitted that he had entered the country illegally in May of 1989.

Molina subsequently was charged in a one-count indictment with illegally entering the United States after previous deportation for a non-immigration felony, in violation of 8 U.S.C. § 1326(a), (b)(1) (1988). The indictment alleged:

Between on or about April 6, 1989 and on or about June 12, 1990, within the District of Columbia and elsewhere, the defendant Miguel Molina[,] also known [by various aliases] ..., an alien previously arrested and deported subsequent to his conviction for the commission of a felony, did knowingly, willfully and unlawfully re-enter the United States....

Indictment (filed July 12, 1990) at 1 (emphasis deleted), reprinted in Brief of Appellant at 2. Molina pled guilty to the indictment, without a plea agreement, on September 4, 1990.

The Pre-Sentence Report ("PSR") prepared in Molina's case calculated his offense level under Guideline section 2L1.2 as ten, founded upon a base offense level of eight, a four-level increase because of Molina's prior conviction of a non-immigration felony, and a two-level reduction for acceptance of responsibility. See PSR at 4, reprinted in Appendix to Brief of Appellant ("App."), tab C; United States Sentencing Commission, Guidelines Manual, § 2L1.2 (Nov. 1991). Based upon Molina's seven prior convictions for serious offenses, the PSR assigned him a total of 16 criminal history points; this placed Molina in criminal history category VI. ¹ Several other prior convictions for petty offenses--including possession of marijuana, theft and paint sniffing--were noted in the PSR but not used in calculating Molina's criminal history score. See PSR at 8. The PSR also revealed that Molina had been arrested at least eleven other times, and that he had entered the United States illegally on four prior occasions. See id. at 8, 11-12.

The sentencing range corresponding to Molina's offense level (ten) and his criminal history category (VI) was 24-30 months. See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). Based upon Molina's extensive criminal record, however, the PSR recommended an upward departure from the Guideline range. See PSR at 11-12.

On November 2, 1990, the District Court sentenced Molina. At the sentencing hearing, the government argued for an upward departure based upon Molina's repeated immigration violations and his substantial criminal record. Defense counsel argued the converse, contending that Molina's immigration offenses and other prior convictions already were taken into account by his criminal history score and that mitigating factors were present, including Molina's poverty-stricken upbringing in Mexico.

The District Court found that an upward departure was warranted on criminal history grounds. ² In explaining its rationale for departure, the court stated:

I realize that the guideline range is 24 to 30 months. It appears to the court that under the considerations I must take into account which really are beyond anything contemplated in the guideline computations this sentence must be enhanced. I have attempted to determine in the light of a variety of factors the degree to which it should be enhanced and I am required and wish to set forth the factors that play a part in my decision.

We have a situation here where it is obvious that deportation will accomplish nothing because the gentleman will immediately return to the United States if he can. He has done so in the past regularly and there's no reason to think that if he was simply deported after a lesser sentence he wouldn't immediately come back into the country illegally.

He's already been deported three times ³ and it has had no effect.

When he returns to this community for whatever reason he has engaged in repeated continuous anti-social behavior being subjected constantly to arrests and has had a whole series of convictions as referred to by the U.S. Attorney, some of which are indeed quite serious matters.

In other words, he has used his presence here in the country to further criminal objectives. There is no evidence before me presented by anyone that he has done anything constructive in the country on the numerous times he's come here.

The fact that some of these offenses have been committed in violation of his parole and while he is on parole demonstrates to the court a total irresponsibility in connection with his obligations under the law of this country. Some of these offenses border on the violent. And of course they have been committed in the context of his having received repeated warnings that he must alter his conduct which he is for some reason unable to do.

Transcript of Sentencing Hearing (Nov. 2, 1990) ("Tr.") at 9-11, reprinted in App., tab B (paragraph numbers added). The trial court also stated, in earlier comments, that Molina was arguably guilty of obstruction of justice based upon his repeated use of aliases and that it was "a very close question as to whether ... he doesn't deserve some ... recomputation of the guidelines upward for that alone." Id. at 6.

Relying upon the "unusual and quite special factors" described in the statement of its reasons for departure, id. at 11, the District Court sentenced Molina to five years of imprisonment and three years of supervised release--the maximum permitted by the statute. See 8 U.S.C. § 1326(b)(1). Molina now appeals from the sentence imposed.

II. DISCUSSION

On appeal, Molina argues that the District Court failed to identify adequate grounds for departure, and that the extent of court's departure was not adequately justified. We find merit in both of Molina's contentions.

A. Adequacy of Grounds for Departure

The Sentencing Reform Act provides that a district court may depart from the applicable Guideline range if it

finds that 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.

18 U.S.C. § 3553(b) (1988); see also U.S.S.G. § 5K2.0, p.s. (authorizing departure in circumstances described by section 3553(b)). Whether an aggravating factor was "adequately taken into consideration" by the Sentencing Commission is a question of statutory interpretation that we review de novo. United States v. Ogbeide, 911 F.2d 793, 795 (D.C.Cir.1990).

In this case, the District Court mentioned six factors in explaining its decision to depart from the Guideline range: (1) Molina's repeated illegal entries into the United States (p 2); (2) the extensiveness of Molina's criminal record (pp 3-5); (3) Molina's numerous prior arrests (p 3); (4) the fact that some offenses were committed while on parole (p 5); (5) Molina's possible liability for obstruction of justice based upon his past use of aliases, Tr. at 6; and (6) the fact that Molina had never "done anything constructive" in the United States (p 4). Molina argues that none of these factors justified departure from the Guideline sentencing range.

The Guidelines foreclose the possibility of a departure in this case based upon Molina's prior arrests, his parole status or his past use of aliases. See U.S.S.G. § 4A1.3, p.s. (prior arrest record not ground for criminal history departure); id. § 4A1.1(d) (providing upward adjustment for commission of offense while on parole ⁴); id. § 3C1.1, comment. (n. 4) (use of aliases inappropriate ground for obstruction of justice enhancement absent actual hindrance of instant prosecution). Thus, the Government essentially concedes, as it must, that factors (3) through (5) are not appropriate grounds for departure. The sixth factor, Molina's apparent failure to contribute to society, is simply irrelevant to the...