U.S. v. Perez, 89-8054

• Decision Date: 12 October 1990
• Docket Number: No. 89-8054,89-8054
• Citation: 915 F.2d 947
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Geraldo PEREZ, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 947

915 F.2d 947

UNITED STATES of America, Plaintiff-Appellee, v. Martin Geraldo PEREZ, Defendant-Appellant.

No. 89-8054

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Oct. 12, 1990.

Opinion on Denial of Rehearing

Nov. 26, 1990.

L. Aron Pena (Court-appointed), Pena, McDonald, Prestia & Ornelas, Edinburg, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Gerald C. Carruth, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before KING, GARWOOD and DUHE, Circuit Judges.

PER CURIAM:

Appellant Martin Geraldo Perez (Perez) pleaded guilty to use of a communication facility to facilitate a drug felony in violation of 21 U.S.C. Sec. 843. The United States Sentencing Guidelines (Guidelines) indicated a ten to sixteen month term of imprisonment. The district court departed from the Guidelines and increased Perez's sentence to thirty-six months in order to accurately reflect the seriousness of Perez's conduct. Perez claims that the district court erred by increasing his sentence over the base range in the Guidelines and by denying him a two point reduction in sentence level for accepting personal responsibility for his offense. We affirm.

I. Background.

Perez's brother, Arunlfo Torres Perez (Arunlfo), gave an undercover Drug Enforcement Administration (DEA) agent a list of chemicals and glassware that he needed in order to manufacture a one hundred pound batch of methamphetamine. Arunlfo stated that at least one other person would be helping him. Arunlfo agreed to give the agent $25,000 in cash and eight ounces of methamphetamine in return for the chemicals and glassware. Arunlfo called Perez and obtained his agreement to assist in loading the chemicals and glassware. The district court found that Perez agreed to assist his brother, knowing that such conduct was illegal and that the telephone conversation facilitated the commission of a conspiracy to manufacture and distribute methamphetamine.

Perez accompanied Arunlfo to meet the agent. Arunlfo gave the agent $19,960 in cash and agreed to pay $5,000 later that day. Arunlfo also gave the agent 224 grams of methamphetamine. DEA agents arrested both brothers as they began to load the chemicals and glassware.

A federal grand jury returned an indictment charging Perez with one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. Sec. 846, and with two counts of distribution of methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1). As part of a plea agreement, Perez pleaded guilty to use of a communication facility to facilitate a drug felony in violation of 21 U.S.C. Sec. 843(b), and the district court dismissed the remaining counts of the indictment.

The district court rated Perez's criminal history category at I and the offense level at 12. The Guidelines indicated a sentence range between ten and sixteen months. The district court declined to grant Perez a two point reduction in his sentencing level, although Perez stated that he was sorry for what he did and was guilty of what he did. Rather, the court upwardly departed from the Guidelines and sentenced Perez to thirty-six months in prison, a one-year term of supervised release, and a $50 special assessment. Perez filed a timely notice of appeal.

II. Increase in Sentence.

We will not disturb a sentence that falls within the statutory limits, even though an upward departure from the Guidelines, absent a "gross abuse of discretion." ¹ United States v. Murillo, 902 F.2d 1169 (5th Cir.1990) (quoting United States v. Juarez-Ortega, 866 F.2d 747, 748 (5th Cir.1989)). The district court must articulate its reasons for departing from the Guidelines, however, and those reasons must be acceptable and the extent of the departure reasonable. 18 U.S.C. Sec. 3742(e); United States v. Campbell, 878 F.2d 164, 165 (5th Cir.1989); United States v. Velasquez-Mercado, 872 F.2d 632, 635 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 187, 107 L.Ed.2d 142 (1989).

The Guidelines allow the district court to depart from the recommended sentencing range based on an aggravating factor only if the Sentencing Commission failed adequately to take that kind of aggravating factor into account, or the factor was "present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." U.S.S.G. Sec. 5K2.0, p.s.; U.S. v. Shaw, 891 F.2d 528, 530 (5th Cir.1989). In making this determination, the district court considers only the Guidelines, policy statements, and official commentary of the Sentencing Commission. Id.

In the instant case, the district court based its departure from the Guidelines on U.S.S.G. Sec. 5K2.9, p.s. That section provides that "[i]f the defendant committed the offense in order to facilitate or conceal the commission of another offense, the court may increase the sentence above the guideline range to reflect the actual seriousness of the defendant's conduct."

Perez contends that the district court abused its discretion when it increased his sentence to reflect the actual seriousness of his conduct. The Sentencing Commission must have considered, he argues, that the defendant was facilitating another offense when it set the guideline for using a communication facility to facilitate a drug felony. We agree. The crime's definition required the Sentencing Commission to take facilitation of another offense into consideration. Our finding that the Sentencing Commission must have considered this factor, however, does not conclude our inquiry.

The Guidelines also permit the district court to depart from the recommended sentence if the aggravating factor was "present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction." ² U.S.S.G. Sec. 5K2.0, p.s. Whether Perez's facilitation of a conspiracy to manufacture one hundred pounds of methamphetamine was substantially in excess of that which ordinarily is involved in use of a communication facility to facilitate a drug felony is a question of fact reviewable under the clearly erroneous standard. After reviewing the evidence, we cannot say that the district court clearly erred in finding that Perez's facilitation of this conspiracy justified an upward departure from the Guidelines. ³

We will affirm the district court's departure from the guidelines if its articulated reasons for departure were acceptable and if the extent of its departure was reasonable. We have determined that the district court's reasons for departure were acceptable. We must now determine if the extent of that departure was reasonable.

The district court increased Perez's sentence from a maximum of sixteen months under the Guidelines to thirty-six months, an increase of twenty months. While such an increase is substantial, it is well below the statutory maximum term of imprisonment of forty-eight months for using a communication facility to facilitate a drug felony. 21 U.S.C. Sec. 843(b). While the Guidelines circumscribe, they do not eliminate the sentencing court's discretion in imposing sentence. United States v. Roberson, 872 F.2d 597, 601 (5th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 175, 107 L.Ed.2d 131. We cannot say that the district court grossly abused its discretion by increasing Perez's sentence to thirty-six months to reflect the actual severity of his conduct.

III. Refusal to Grant Reduction.

Perez also contends that the sentencing court erred by not granting him a two-point reduction in his offense level because he accepted personal responsibility for his criminal conduct as provided by U.S.S.G. Sec. 3E1.1. In pertinent part, U.S.S.G. Sec. 3E1.1 provides:

(a) If the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels.

* * *

* * * (c) A defendant who enters a guilty plea is not entitled to a sentencing reduction under this section as a matter of right.

Whether a defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct is a question of fact. "The standard of review under this provision," however, "is more deferential than under the clear error standard because 'the sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review and should not be disturbed unless it is without foundation.' " Roberson, 872 F.2d at 610 (quoting Guidelines Sec. 3E1.1, application note 5); United States v. Edwards, 911 F.2d 1031, 1034 (5th Cir.1990).

Perez had the burden of establishing to the satisfaction of the district court that he had accepted responsibility for his conduct. United States v. Mayard, 891 F.2d 530, 532 (5th Cir.1989). In order to obtain such a finding, Perez needed to demonstrate "sincere remorse" for his conduct. 3E1.1, comment (backg'd); United States v. Sanchez, 893 F.2d 679, 681 (5th Cir.1990).

Perez argues that his guilty plea and his statement to the court that "I'm sorry for what I did and I am guilty of what I did," demonstrated his personal acceptance of responsibility for his criminal conduct. We disagree. While a plea of guilty may provide some evidence of a defendant's responsibility, it does not automatically entitle a defendant to the reduction provided by U.S.S.G. Sec. 3E1.1. Sanchez, 893 F.2d at 681; Mayard, 891 F.2d at 532. See U.S.S.G. Sec. 3E1.1, comment (n.3). Nor was the district court's decision that Perez's statement to the court fell short of demonstrating acceptance of personal responsibility without foundation. The court adopted the factual findings of the Presentence Report (PSR) to which Perez did not object. The PSR stated that:

[Perez's] acknowledgement of the basic factual elements of the offense as contained in...