U.S. v. Montenegro-Rojo

Decision Date11 July 1990
Docket NumberD,No. 89-50134,MONTENEGRO-ROJ,89-50134
Citation908 F.2d 425
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Luisefendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Shawn M. Hayes, Federal Defenders of San Diego, Inc., 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 HUG, HALL and WIGGINS, Circuit Judges.


The opinion filed April 12, 1990, is hereby WITHDRAWN. The opinion submitted herewith shall be filed in its stead.



Defendant-Appellant Luis Montenegro-Rojo was convicted of illegal entry into the United States in violation of 8 U.S.C. Sec. 1325(a) (1988). His sentence was governed by the Sentencing Reform Act of 1984 ("the Act"), 18 U.S.C. Secs. 3551-3586 (1988). The district court departed upward from the sentence indicated by the Sentencing Guidelines ("the guidelines") and imposed a sentence of twenty-one months of imprisonment followed by one year of supervised release. Montenegro-Rojo argues on appeal that this departure was both inappropriate and unreasonable. In addition, he alleges that because his prison sentence, combined with his term of supervised release following incarceration, results in a total sentence of thirty-one months, it exceeds the statutory maximum of two years of imprisonment set by 8 U.S.C. Sec. 1325(a) (1988) and is therefore illegal.

Although we believe that the district court identified permissible grounds for departure in this case, we must remand for resentencing because the court failed to explain how it arrived at the degree of its departure. We further hold that the district court was authorized to impose a term of supervised release that, when added to Montenegro-Rojo's term of imprisonment, resulted in a final sentence in excess of the maximum term of imprisonment authorized for illegal entry under 8 U.S.C. Sec. 1325 (1988).


On March 21, 1988, appellant was stopped by Border Patrol officers on a San Diego trolley. He ran from the officers, but was caught as he attempted to climb a fence. A struggle ensued and appellant grabbed a piece of wood from the fence two inches wide and four feet long and struck one of the agents, who suffered only minor cuts requiring no medical treatment. The wood was embedded with nails. Appellant was charged with assault on a federal officer and illegal entry. The first charge was dismissed, and on May 9, 1988, appellant pled guilty to the charge of illegal entry in violation of 8 U.S.C. Sec. 1325 (1988).

The presentence report stipulated that the sentencing range in this case was from six to twelve months. 1 The probation officer recommended the maximum twelve months in view of the defendant's prior arrest history and his "violent opposition to being arrested." Counsel for defense and the government concurred in recommending the maximum sentence under the guidelines. Nonetheless, the sentencing court did not follow the guidelines and instead departed upward, imposing a sentence of twenty-one months of imprisonment and one year of supervised release.


We review a district court's decision to depart from the sentencing guidelines under a five-step analysis. See United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir.1990). First, we determine whether the district court adequately stated its reasons for departure, making sure that the court not only identified the specific aggravating or mitigating circumstances warranting departure, but found that the Sentencing Commission ("the Commission") did not adequately consider these circumstances. Id. at 983-84. Second, we review under the clearly erroneous standard whether the factual circumstances listed by the district court as supporting departure actually existed. Id. at 984. Third, we review de novo the district court's decision that the aggravating or mitigating circumstances were of a kind not adequately considered by the Commission within the meaning of 18 U.S.C. Sec. 3553(b). Id. at 984-85. 2 Only if we agree with the district court do we reach the fourth step, where we review under the abuse of discretion standard the district court's decision to depart based on the identified circumstances. Id. at 985. Fifth, we determine whether the departure is "unreasonable" within the meaning of 18 U.S.C. Sec. 3553(c), an inquiry which requires us to employ the abuse of discretion standard. Id. at 986.


The first step in our review recognizes that when a sentencing court chooses to depart from the guidelines, the Act requires the court to state its "specific reason" for so doing. 18 U.S.C. Sec. 3553(c)(2) (1988); see United States v. Wells, 878 F.2d 1232, 1233 (9th Cir.1989). When reviewing the sentence, we must consider the reasons for departure actually articulated by the sentencing court. Id. Sec. 3742(e)(3)(B); see United States v. Cervantes-Lucatero, 889 F.2d 916, 918 (9th Cir.1989); Wells, 878 F.2d at 1233. In United States v. Michel, 876 F.2d 784 (9th Cir.1989), for instance, we vacated a sentence that departed upward because the district court gave only a "conclusory statement of reasons" for departure that "fail[ed] to clearly identify the specific aggravating circumstances present in the case." 876 F.2d at 786.

On review, then, we do not search the record for permissible reasons for departure; instead, we analyze the reasons actually given by the district court. These reasons must be sufficiently specific to allow this court to conduct a meaningful review. Wells, 878 F.2d at 1233. Moreover, if the fourth step in our analysis reveals that the district court considered both proper and improper bases for departure, "we have no way to determine whether any portion of the sentence was based upon consideration of the improper factors," United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989), and must therefore vacate the sentence and remand for resentencing. See also Cervantes-Lucatero, 889 F.2d at 919; United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989). In the instant case the district court at sentencing provided a detailed rationale for departing from the guidelines:

This is why I think departure is appropriate in your case.

People have tried to use the trolley here as some means of transportation back and forth, and I think that you have misused its facility on many occasions over a considerable period of time.

I look at your record here, and I note that you have previous burglaries here. When you were arrested, you give fictitious names. When you are placed in jail, you are involved in fights and trouble. You hit an officer with a two-by-four when you were confronted in this instance. You resisted arrest. You fought with the officers. You had several confrontations on the trolley.

You have had seven voluntary returns, and, as I say, several incidents there on the trolley. You acted as guides for other aliens on the trolley. As I read this, you appear to be a very street-wise young man. At age 20, you are really going on age 45. I think you are a menace to a lot of people who use the trolley. I think you are a menace to a lot of the community people here in San Diego. I think you have had plenty of warnings all the way through. I think you have had the course. So, as far as I am concerned, I don't have much sympathy for you, Mr. Montenegro.

I am going to depart upward in the guidelines for the reasons set out in this probation report, and they would be essentially the assault that would cause physical injury. I don't think the adequacy of your criminal record has been really taken into account in the guidelines. I think that the arrest on July 5 for battery on a person, the fair [sic] evasion at that time, is so similar to this incident that I think it is just a repetitive pattern. I think you were confronting a female trolley officer in such a stance that, even though there was no injury inflicted, I don't think they pay enough money to go through that kind of business. So you didn't appear on that case for all those reasons, as set out in the probation report.

I don't think that the guideline sentence adequately deals with the circumstances in your individual case. We have been told that, if that is so, that we may depart, and I think, if there is ever a case for departure, it's in your case. So, in your case, I am going to depart and impose a term of 21 months, Mr. Montenegro, and supervised release for a period of one year.

Pursuant to the second step of our analysis, we conclude that the facts found by the district court based on the presentence report do not strike us as clearly erroneous. Indeed, Montenegro-Rojo only disputes the court's finding that he struck the officer with a wooden board, although he fails to point to anything in the record other than this bare contention in support of his denial. 3 Moreover, these facts provide ample justification for the court's departure from the guidelines on the bases of Montenegro-Rojo's criminal history and his resisting arrest for the instant illegal entry.


As for criminal history, the court in part relied on the previous burglary conviction in appellant's record. 4 By itself, this conviction is unremarkable and is adequately taken into account by the criminal history category contained in the guidelines. Yet the court specified what it thought unusual about the conviction: that Montenegro-Rojo had provided authorities with fictitious names 5 and that he had had disciplinary trouble while incarcerated. We agree that these factors help make Montenegro-Rojo's case one sufficiently atypical to satisfy the third step in our review. In particular, the fact that appellant had disciplinary problems in jail after being convicted of burglary was...

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