U.S. v. Ocasio

• Decision Date: 31 July 1990
• Docket Number: No. 90-1146,90-1146
• Citation: 914 F.2d 330
• Parties: UNITED STATES of America, Appellee, v. Gilberto OCASIO, a/k/a Gilberto Ocasio Agosto, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 330

914 F.2d 330

UNITED STATES of America, Appellee, v. Gilberto OCASIO, a/k/a Gilberto Ocasio Agosto, Defendant, Appellant.

No. 90-1146.

United States Court of Appeals,

First Circuit.

Heard July 31, 1990.

Decided Sept. 19, 1990.

Jose Antonio Pagan Nieves, Old San Juan, P.R., by appointment of the Court, for appellant.

Jorge E. Vega-Pacheco, Asst. U.S. Atty., San Juan, P.R., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief for U.S.

Before CAMPBELL and SELYA, Circuit Judges, and BOWNES, Senior Circuit Judge.

SELYA, Circuit Judge.

Adding yet another rivulet to the recent cascade of criminal sentencing appeals, defendant-appellant Gilberto Ocasio Agosto (Ocasio) asserts that the district court erred not only in computing the applicable guideline sentencing range (GSR) but also in determining the direction and degree of an ensuing departure from the guidelines. We review his contentions.

I. HOW THE SENTENCE EVENTUATED

Ocasio pled guilty to aiding in the 1989 escape of a federal prisoner, one Orlando Saade-Ballesteros (Saade), from the Rio Piedras State Penitentiary, in violation of 18 U.S.C. Sec. 752(a). ¹ The district court undertook to calculate the GSR. See U.S.S.G. Sec. 1B1.1 (rev. ed. 1989); see also United States v. Diaz-Villafane, 874 F.2d 43, 47-48 (1st Cir.) (explaining method of computation under federal sentencing guidelines), cert. denied, --- U.S. ----, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989); United States v. Wright, 873 F.2d 437, 440 (1st Cir.1989) (similar). The court selected the base offense level (13) corresponding to the statute of conviction; declined any role-in-the-offense adjustment; granted a two-level reduction for acceptance of responsibility under U.S.S.G. Sec. 3E1.1(a); and set the total offense level at 11.

The court then considered defendant's criminal history category (CHC). Ocasio had a lengthy record, dating back to 1973 (when he was 18 years old). A large part of his record involved sentences imposed concurrently for what the guidelines euphemistically call "related cases." ² As shown in the attached appendix, only four of his 16 convictions were actually counted. Three points were awarded for Offense No. 2, see U.S.S.G. Sec. 4A1.1(a) (prescribing 3 points for each prior prison sentence exceeding 13 months), with no increment for the other three convictions in Group I (Nos. 1, 3 and 4). Three more points were awarded for Offense No. 6, see id., with no increment for its three related cases (Nos. 5, 7 and 8). Another three points were awarded for Offense No. 9, see id., with no increment for six other cases (Nos. 10-15). Two more points were awarded for Offense No. 16, see U.S.S.G. Sec. 4A1.1(b) (prescribing 2 points for each prior prison sentence of at least 60 days, not otherwise counted). Two final points were added because defendant, at the time he committed the offense of conviction, was serving, and remained subject to, an ongoing criminal justice sentence. See U.S.S.G. Sec. 4A1.1(d); see generally United States v. Gallego, 905 F.2d 482 (1st Cir.1990). The resultant total, 13 points, placed Ocasio in category VI (the highest CHC denominated by the guidelines).

Using the grid, the district court determined that the GSR was 27-33 months; overrode defendant's plea for sentencing below the GSR minimum; and departed sua sponte in the opposite direction, incarcerating defendant for 60 months (the statutory maximum under 18 U.S.C. Sec. 752(a)), to be followed by a term of supervised release. Ocasio assigns error in three respects. We address his claims sequentially.

II. ROLE IN THE OFFENSE

We need not linger long over defendant's contention that, since he was a "minor participant" in Saade's escape from Rio Piedras, the district court should have granted him a two-level reduction under U.S.S.G. Sec. 3B1.2(b) (directing two-level decrease if defendant "was a minor participant in any criminal activity"). A defendant has the burden of proving his entitlement to a downward adjustment in the offense level. See United States v. Howard 94 F.2d 1085, 1089-90 (9th Cir.1990); United States v. McDowell, 888 F.2d 285, 291 (3d Cir.1989). If disgruntled, the defendant, on appeal, also has the burden of demonstrating that the trial court's role-in-the-offense determination was clearly erroneous. See Diaz-Villafane, 874 F.2d at 48; Wright, 873 F.2d at 443-44. Ocasio has not satisfied either burden.

It seems plain from the record that Saade's escape likely could not have been consummated without Ocasio's help. Ocasio admitted that, on instructions from a corrupt prison guard who promised him money, he passed Saade off as another inmate, enabling the escapee to gain access to the work detail from which he subsequently absconded. Ocasio also acted as a lookout once the attempt was underway. These were important contributions to the overall plot. That the guard's behavior may have been more reprehensible does not automatically entitle Ocasio to extra credit. Role-in-the-offense adjustments depend, after all, not only on the comparative conduct of persons jointly engaged in criminal activity, but also on comparing each offender's actions and relative culpability with the elements of the offense. See United States v. Daughtrey, 874 F.2d 213, 216-17 (4th Cir.1989). In the final analysis, a defendant must be "substantially less culpable than the average participant" before the court must mull the adjustment. See U.S.S.G. Sec. 3B1.2, commentary (backg'd).

No useful purpose would be served by belaboring the point. Of necessity, role-in-the-offense assessments are fact-specific, see id. (forewarning that minor participant determinations are "heavily dependent upon the facts of the particular case"), a circumstance suggesting that considerable respect be paid to the views of the nisi prius court. In this instance, it would be foolhardy to second-guess the sentencing judge, given his superior coign of vantage. The defendant had a hand in each of the essential elements of the offense of conviction. He assisted Saade's escape in a material manner. It would be hard to say that Ocasio's facilitative conduct was "substantially less culpable" than that of the "average" person who participates in aiding a federal prisoner to escape. Certainly, the district court was not legally required to find Ocasio to be a minor participant. See, e.g., United States v. Cepeda, 907 F.2d 11 (1st Cir.1990).

III. DOWNWARD DEPARTURE

We are without jurisdiction to consider appellant's contention that the district court erred in declining to impose a sentence beneath the GSR floor. In United States v. Ruiz, 905 F.2d 499 (1st Cir.1990), we restated the rule: "absent extraordinary circumstances, a criminal defendant cannot ground an appeal on the district court's discretionary decision not to undertake a downward departure from the sentencing range indicated by the guidelines." Id. at 508-09; see also United States v. LaGuardia, 902 F.2d 1010, 1012 (1st Cir.1990); United States v. Jimenez-Otero, 898 F.2d 813, 815 (1st Cir.1990); United States v. Pighetti, 898 F.2d 3, 4-5 (1st Cir.1990); United States v. Tucker, 892 F.2d 8, 10 (1st Cir.1989). There is nothing in Ocasio's case which invokes any exception to this rule.

To be sure, appellant hawks his post hoc cooperation with the government as a basis for going below the GSR. But, the guidelines forestall any attempt to use an accused's substantial assistance as a springboard for downward departure except in cases where the prosecution has moved for such a dispensation. See U.S.S.G. Sec. 5K1.1; see also LaGuardia, 902 F.2d 1010. Because no such motion was ever lodged in this instance, Ocasio's claimed assistance to the government cannot command disregard of the GSR. Hence, this reason of appeal is not properly before us.

IV. UPWARD DEPARTURE

Defendant's complaint that the district court erred in sentencing him to a term of imprisonment well in excess of the top end of the GSR is not so easily brushed aside. We review this assigned error in accordance with the three-part methodology limned in Diaz-Villafane First, we assay the circumstances relied on by the district court in determining that the case is sufficiently "unusual" to warrant departure. That review is essentially plenary: whether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure is, we think, a question of law.

Second, we determine whether the circumstances, if conceptually proper, actually exist in the particular case. That assessment involves factfinding and the trier's determinations may be set aside only for clear error.

Third, once we have assured ourselves that the sentencing court considered circumstances appropriate to the departure equation and that those factors enjoyed adequate record support, the direction and degree of departure must, on appeal, be measured by a standard of reasonableness.

874 F.2d at 49 (citations omitted). Accord United States v. White, 893 F.2d 276, 277 (10th Cir.1990); United States v. Summers, 893 F.2d 63, 66-67 (4th Cir.1990); United States v. Joan, 883 F.2d 491, 494-95 (6th Cir.1989).

A

Inasmuch as a departure necessitates "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. Sec. 3553(b), we start with whether the instant case presented "unusual circumstances" sufficient to allow a departure. See United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir.1989); see also United States v. Williams, 891 F.2d 962, 964 (1st Cir.1989); Diaz-Villafane, 874 F.2d at 49. We look first, of course, to what the district court tells us sparked its decision to depart, here the conclusion that: "A departure is warranted because the defendant's criminal history category significantly underrepresents the seriousness...