U.S. v. Nuno-Para

• Decision Date: 07 October 1988
• Docket Number: 88-5217,NUNO-PAR,Nos. 88-5163,D,GARCIA-REYE,s. 88-5163
• Citation: 877 F.2d 1409
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Irmaefendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1409

877 F.2d 1409

2 Fed.Sent.R. 46

UNITED STATES of America, Plaintiff-Appellee, v. Irma NUNO-PARA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jesus GARCIA-REYES, Defendant-Appellant.

Nos. 88-5163, 88-5217.

United States Court of Appeals Ninth Circuit.

Submitted Oct. 7, 1988 ^*.

Decided June 20, 1989.

Frank T. Morell, Moreno & Morell, Chula Vista, Cal., for defendant-appellant, Nuno-Para.

Gary Edwards, San Diego, Cal., for defendant-appellant, Garcia-Reyes.

D. Thomas Ferraro, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.

On Rehearing from the United States District Court for the Southern District of California.

Before NELSON and BEEZER, Circuit Judges, and REA ^**, District Judge.

NELSON, Circuit Judge:

Irma Nuno-Para (Nuno) and Jesus Garcia-Reyes (Garcia) petition for rehearing following our previous memorandum disposition in which we vacated their sentences and remanded for resentencing. See Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, 1268 (9th Cir.1988), overruled, Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). In light of Mistretta, in which the United States Supreme Court held the Sentencing Reform Act of 1984 and promulgation of the sentencing guidelines by the Sentencing Commission constitutional, we grant appellants' petition for rehearing and consider the merits of their appeals.

FACTUAL BACKGROUND AND PROCEEDINGS

Nuno and Garcia were charged in a six count indictment which alleged a scheme involving the transportation of illegal aliens from San Diego to Los Angeles. Pursuant to a plea bargain, both appellants pleaded guilty to one count of aiding and abetting the transportation of illegal aliens. The government dismissed the remaining charges in the indictment, and the district court ordered the preparation of presentence reports.

The presentence reports state that appellants were central figures in a large-scale alien smuggling ring in which illegal aliens, having crossed the United States-Mexican border, were smuggled north from San Diego to Los Angeles. Immigration and Naturalization Service (INS) agents observed the smuggling ring over a two and one-half month period. During the period of surveillance, agents saw that many groups were regularly conducted from San Diego to Los Angeles. The number of illegal aliens in each group aided by the appellants ranged from two to eighteen.

A. Presentence Guideline Calculations and Recommendations

1. Nuno

The probation officer concluded that Nuno had a central role in the smuggling organization, and that the rest of the organizers took their direction from her. Evidence showed that appellant Nuno, along with certain of her codefendants, regularly drove the immigrants to Lindbergh Field where they were assisted in boarding an aircraft. She directed the lookouts and guides in receiving the loads of illegal aliens, escorted the aliens into the airline terminal, and purchased tickets for their flights to Los Angeles. She was also observed arriving at and entering into various drop houses.

The sentencing guidelines prescribe a base offense level of six for transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). See United States Sentencing Commission Guideline Manual, Sec. 2L1.1 (1987) [hereinafter Sentencing Guidelines]. Where a defendant commits the crime for profit, as Nuno admittedly did, the base level is increased by three, raising the offense level to nine. Id. In addition, the probation officer increased Nuno's offense level by another four levels based on her culpability, i.e., her leadership role in the operation. See id. at Sec. 3B1.1(a). Nuno's adjusted offense level was calculated at thirteen. Because, however, she admitted responsibility for the crime, the offense level was reduced by two, for a final offense level of eleven. See id. at Sec. 3E1.1(a).

Nuno had no criminal history, so she was classified as a Level I offender. The sentencing table prescribed a guideline sentence of eight to fourteen months incarceration. Accordingly, the probation officer recommended the median term of eleven months plus two years supervised release.

2. Garcia

The probation officer concluded that Garcia engaged in the same activities as Nuno but that his organizational role was lesser. Garcia was regarded as highly culpable, however, because of the items that were found in his residence (one of the drop houses) upon his arrest: a 9mm semiautomatic Uzi, a small bag of marijuana, $7,358 in United States currency, 177,000 pesos, and $2,400 in Western Union money orders payable to Garcia. In spite of these items and his finding that Garcia was central to the operation, the probation officer did not adjust Garcia's offense level upward. The probation officer also did not credit Garcia for acceptance of responsibility because although appellant admitted that he sometimes provided rides to illegal aliens for a small fee, he denied any greater role in the operation. Thus, the probation officer calculated Garcia's offense level to be nine.

The probation officer found that Garcia had five criminal history points which consisted of two points for committing the instant offense while on probation, and one point each for two shoplifting convictions and carrying a concealed weapon. See id. at Sec. 4A1.1. His offender level thus was set at Level III, resulting in a guideline sentence range of eight to fourteen months. The probation report also stated, however, that based on the presence of the weapon, the court might appropriately depart from guideline sentencing. See id. at Sec. 5K2.6. ¹

B. Sentencing

The court rejected the probation officer's recommendations in both cases and departed from the guideline range, sentencing Nuno to four years incarceration and two years supervised release and Garcia to three years incarceration with two years supervised release. In imposing sentence on Nuno, the court stated:

The sentence here involved is transporting illegal aliens, and that has the model of someone driving an alien, say northward to Los Angeles. You were in the business of moving bodies through the San Diego airport at a rate that I think defies the mind. You were doing it for a substantial period of time.... It was a highly organized, sophisticated operation; and aliens were moved ... on an almost daily basis....

I don't look at this as a casual, giving somebody a ride in the car, or an individual smuggling case; and I don't think the guidelines adequately deal with it. I think that you were the prime mover. I think this was your business, and I think you made a lot of money doing it. I'm going to depart from the guidelines and impose a four-year sentence.... I would find that the aggravating circumstances, particularly your role in these events, as organizer or as a prime mover, were not adequately taken into consideration by the sentencing commission in formulating the guidelines; and therefore, I would impose a sentence different from that which has been recommended in the guidelines.... (emphasis added).

Similarly, in sentencing Garcia, the court declared:

Mr. Garcia, you heard what I said as far as Miss Nuno is concerned. I feel also, your case is a case where there should be a departure from the guidelines.... I would find that the fact that you had a weapon--weapons at the time of your arrest, that you were involved to some extent with possession of narcotics, and I think your role in this ring was substantial.... I think it was a pattern of activity that moved a substantial number of people through this country, through the port of entry, in a very sophisticated, highly-organized manner; and you have had previous contact with the criminal justice system; and, in my judgment, if any one in the world should have known better, you should have, Mr. Garcia. I am going to impose a three-year sentence in your case (emphasis added).

Thus, although the district court referred to the large numbers of aliens transported, it also relied on factors accounted for by offense level adjustments--the profit motive and the defendant's role in the crime. The court also apparently considered, with respect to Garcia, his criminal history, and the seizure of a small bag of marijuana and a semiautomatic firearm at the residence where Garcia was arrested.

DISCUSSION

I Departure from the Guidelines

Both appellants contend that the district court was unreasonable in departing from the guidelines, and that it relied on impermissible factors to so depart.

The sentencing guidelines are a comprehensive set of rules that are designed to limit the sentencing court's discretion. See Sentencing Guidelines, Chap. 1, Part A, Sec. 3 at 1.2. The purpose for the guidelines is the prevention of disparity in sentencing. See id.; S.Rep. No. 98-225, 98th Cong., 1st Sess. at 38-50 (1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3221-33. Thus, the guidelines are a tool by which to achieve proportionality in sentencing. See S.Rep. No. 98-225, 98th Cong. 1st Sess. at 51-52, U.S.Code Cong. & Admin.News 1984, at 3234-35.

The guidelines seek to fulfill their purpose by setting offense and criminal history levels and providing a table that dictates sentences based on those levels. The guidelines establish a base offense level for most crimes and also provide for upward or downward level adjustments from the base, depending on a number of factors, including the defendant's role in the offense of which he was convicted, see Sentencing Guidelines, Secs. 3B1.1, 3B1.2, the defendant's motive for committing the offense, see, e.g., id. at Sec. 2L1.1(b)(1), and the defendant's acceptance of responsibility and expression of remorse, see id. at Sec. 3E1.1.

18 U.S.C. Sec. 3553 establishes the procedure for imposition of a sentence under the guidelines. Section 3553(a) sets forth factors to be considered by the district court in fixing a sentence; these factors include the kinds of sentence and the...