U.S. v. Munster-Ramirez, MUNSTER-RAMIREZ

• Decision Date: 29 June 1989
• Docket Number: MUNSTER-RAMIREZ,No. 88-5263,88-5263
• Citation: 888 F.2d 1267
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arturo, aka David Otto Munster, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1267

888 F.2d 1267

UNITED STATES of America, Plaintiff-Appellee, v. Arturo MUNSTER-RAMIREZ, aka David Otto Munster, Defendant-Appellant.

No. 88-5263.

United States Court of Appeals Ninth Circuit.

Submitted June 29, 1989. ^*

Decided Nov. 7, 1989.

Grant Eddy, San Diego, Cal., for defendant-appellant.

Bruce R. Castetter, Asst. U.S. Atty., Chief, Appellate Section, Crim. Div., San Diego, Cal., for plaintiff-appellee.

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

Before ALARCON and NELSON, Circuit Judges, and ROSENBLATT, ^** District Judge.

ALARCON, Circuit Judge:

Arturo Munster-Ramirez appeals from the judgment of the district court entered after he pled guilty to transportation of an illegal alien under 8 U.S.C. Sec. 1324(a)(1)(B) and commission of the offense of transportation of an illegal alien while on release from a previous indictment for transportation of illegal aliens under 18 U.S.C. Sec. 3147. Munster-Ramirez had an offense level of 13 and a criminal history category of VI resulting in a sentencing range under the Sentencing Guidelines of 33 to 41 months for transportation of an illegal alien. The district court sentenced Munster-Ramirez to 33 months for transportation of an illegal alien. This sentence was to run consecutively to the sentence imposed in another criminal case against him involving transportation of illegal aliens. The district court also ordered a two-year period of supervised release after his term of imprisonment. Munster-Ramirez was given a one-year suspended sentence for violation of 18 U.S.C. Sec. 3147. On appeal, he challenges only his sentence. He contends that (1) the Sentencing Guidelines are unconstitutional; (2) the district court erred in applying section 4B1.3, the criminal livelihood section, of the Sentencing Guidelines; and (3) the district court erred in denying him a two-point adjustment for acceptance of responsibility under the Sentencing Guidelines. We affirm.

I.

Munster-Ramirez challenges the constitutionality of the Sentencing Guidelines. His argument is foreclosed by the Supreme Court's decision in Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

II.

Munster-Ramirez contends that the district court erred in applying section 4B1.3, the criminal livelihood section, of the Sentencing Guidelines, because he "submitted substantial evidence of his employment in lawful activities, starting in 1969 and into the 1980's." Our review of a sentence determined by application of the Sentencing Guidelines is limited by statute. 18 (e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

U.S.C. Sec. 3742 (1989 Supp.). Section 3742 provides in pertinent part:

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines; or

(3) is outside the range of the applicable sentencing guideline, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in Chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

Pursuant to section 3742, after reviewing the record, we must determine whether the sentence was imposed as a result of an incorrect application of section 4B1.3 of the Sentencing Guidelines. 18 U.S.C. Sec. 3742(e)(2). In making this determination, Congress has decreed that we

shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

18 U.S.C. Sec. 3742.

Section 4B1.3 of the Sentencing Guidelines provides:

Criminal Livelihood.

If the defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, his offense level shall be not less than 13, unless Sec. 3E1.1 (Acceptance of Responsibility) applies, in which event his offense level shall be not less than 11.

The commentary to section 4B1.3 provides:

Application Note:

1. "Pattern of criminal conduct" means planned criminal acts occurring over a substantial period of time. Such acts may involve a single course of conduct or independent offenses. This guideline is not intended to apply to minor offenses.

Background: Section 4B1.3 implements 28 U.S.C. Sec. 994(i)(2), which directs the Commission to ensure that the guidelines specify a "substantial term of imprisonment" for a defendant who committed an offense as part of a pattern of criminal conduct from which he derived a substantial proportion of his income.

In determining whether the district court's finding that Munster-Ramirez "derived a substantial portion of his income" from criminal conduct was clearly erroneous, we must first determine what Congress meant by "a substantial portion of his income." Cf. United States v. Rivera, 694 F.Supp. 1105, 1106-1108 (S.D.N.Y.1988) (interpreting "a substantial portion of his income" in absolute terms); United States v. Kerr, 686 F.Supp. 1174, 1178 (W.D.Pa.1988) (interpreting "a substantial portion of his income" in relative terms). This presents a legal question which we review independently and non-deferentially. See Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1011 (9th Cir.1987) (determinations of the scope of statutory requirements are reviewed de novo ).

The court in Rivera concluded that section 4B1.3 should be interpreted to apply "only when the defendant derives substantial income, defined in absolute terms, from criminal activity." 694 F.Supp. at 1106. "Under this interpretation, [section 4B1.3] would apply to offenders for whom the portion of their income derived from the pattern of criminal activity is sufficiently large in amount to be considered 'substantial.' " Id. The court in Rivera concluded that this interpretation was "most consonant with the purpose and legislative history of the guideline." Id. Specifically, the court found that to interpret section 4B1.3 in relative terms would conflict with certain policy statements contained in the Sentencing Reform Act, because the Act requires the guidelines to be neutral as to the socio- The court in Kerr rejected a claim that section 4B1.3 discriminates against indigent persons in violation of the equal protection and due process principles contained in the fifth amendment. 686 F.Supp. at 1175. The court found that the focus of the statute is not indigency. The focus is on "a pattern of criminality" upon which an individual depends for his livelihood. Id. at 1180. In reaching its conclusion that section 4B1.3 passes constitutional muster, the court looked at the predecessors to section 4B1.3, the Dangerous Special Offender statutes, 18 U.S.C. Sec. 3575(e)(2) (repealed 1984), and 21 U.S.C. Sec. 849(e)(2) (repealed 1984). These statutes defined "a substantial source of income" as an amount which

economic status of offenders and the Act requires that the guidelines reflect the general inappropriateness of considering the employment record of the defendant. Id. at 1107 (citing 28 U.S.C. Sec. 994(d) and (e)). The court also noted that a relative interpretation of section 4B1.3 might raise constitutional questions because indigent and wealthy defendants would receive different treatment. Id. at 1107.

for any period of one year or more exceeds the minimum wage, determined on the basis of a forty-hour week and fifty-week year, ... under section 206(u)(1) of title 29 ... and which for the same period exceeds fifty percent of the defendant's declared adjusted gross income under section 62 of title 26.

21 U.S.C. Sec. 849(e) (repealed 1984); see also 18 U.S.C. Sec. 3575(e) (repealed 1984). The court adopted the definition in the Dangerous Special Offender Statutes "as definitive of the 'substantial portion' language" in section 4B1.3, because the court did "not detect any Congressional intent to alter this definition" and because the court found the "wise" purpose of the definition was to provide "an explicit, convenient, and objective measure of proof[.]" Id. at 1178.

In construing section 4B1.3 of the Sentencing Guidelines, we start by looking at the language of section 4B1.3 itself and the commentary to that section. See United States v. Taylor, 802 F.2d 1108, 1113 (9th Cir.1986), cert. denied, 479 U.S. 1094, 107 S.Ct. 1309, 94 L.Ed.2d 164 (1987) (discussing statutory interpretation). Second, we look at the legislative history of the Sentencing Guidelines and section 4B1.3. Id. Absent a clearly established legislative intent to the contrary, the plain meaning of the words used in a statute controls. Id.

We reject the Rivera Court's conclusion "that section 4B1.3 should be applied only when the defendant derives substantial income, defined in absolute terms, from criminal activity." The plain meaning of section 4B1.3 indicates that "a substantial portion of his income" must be defined in relative terms. To interpret this language in absolute terms, as the Rivera Court has, ignores the plain language of section 4B1.3. Moreover, such an interpretation ignores the commentary to section 4B1.3 which indicates that section 4B1.3 applies to "a defendant who committed an offense as part of a pattern of criminal conduct from which he derived a substantial proportion of his income." (emphasis added). "Proportion of his income" plainly means that the sentencing court must determine a defendant's income and then determine what percentage or proportion of his income is derived from criminal activity.

Furthermore, our review of the legislative history of section 4B1.3 does not reveal "a clearly established ...