U.S. v. Perez-Magana, PEREZ-MAGANA

• Decision Date: 01 April 1991
• Docket Number: No. 90-50107,PEREZ-MAGANA,90-50107
• Citation: 929 F.2d 518
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge, aka Alfredo Mendoza-Equihua, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 518

929 F.2d 518

UNITED STATES of America, Plaintiff-Appellee, v. Jorge PEREZ-MAGANA, aka Alfredo Mendoza-Equihua Defendant-Appellant.

No. 90-50107.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 8, 1990.

Decided April 1, 1991.

Judy Clarke, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Joyce Fitzpatrick, Asst. U.S. Atty., William Branitt, U.S. Atty., San Diego, Cal., for plaintiff-appellee.

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

Before D.W. NELSON and REINHARDT, Circuit Judges, and SINGLETON, ^* District Judge.

D.W. NELSON, Circuit Judge:

Appellant Jorge Perez-Magana appeals the district court's imposition of a 30-month sentence for transporting illegal aliens, which included an upward departure from the 6-12 month sentencing range suggested by the Sentencing Guidelines. While appellant concedes that the district court could depart and that it explained its departure, he argues that its degree of departure was unreasonable and that the court failed to give reasons for this degree.

Because the district court did not give an adequate explanation for its great degree of departure, we must vacate the sentence and remand this case for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was arrested on September 28, 1989, and indicted on October 11 on two counts of transporting illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B). Near San Ysidro, California, a U.S. Border Patrol agent watched as a tan sedan driven by appellant pulled over near the international border fence and five aliens got in. After the officer followed the sedan and activated his flashing red lights and siren, appellant initially slowed and moved to the side of the road, while watching the agent in his rearview mirror. About thirty seconds later, Perez-Magana sped off and led the agent on a high-speed chase on side streets of San Ysidro for about five minutes. After running six stop signs, the sedan finally blew a tire, forcing the car to stop. Perez-Magana bailed out of the car and attempted to run back into Mexico, but he was apprehended.

On November 22 appellant pleaded guilty to one count of transporting illegal aliens. The government agreed to drop the other count, recommend a three-level reduction in the offense level for participation in the offense for reasons other than for profit, and recommended a sentence of no longer than 15 months. The statutory maximum for the offense is 60 months. 8 U.S.C. Sec. 1324. The court ordered a presentence report, which calculated the offense level at 4 after deducting two levels for acceptance of responsibility and three levels for participation not for profit. In addition, the presentence report arrived at a criminal history category of VI because of six prior convictions for illegal entry. An offense level of 4 and a criminal history category of VI intersect at a sentencing range of 6-12 months. The presentence report recommended 12 months and noted that the court could consider that on at least three previous occasions appellant had engaged in high-speed chases while carrying illegal aliens.

In meting out a sentence of 30 months, the district court gave as reasons for the departure "the number of times this man has been involved in high speed chases when he has been apprehended for illegal smuggling .... So we have to get him off the highways." The court was careful to cite specific lines of the presentence report that mentioned several previous high-speed incidents to support its decision to depart. ¹

Perez-Magana appeals his sentence, claiming that this departure was unreasonable.

STANDARD OF REVIEW

In reviewing a district court's departure from the Sentencing Guidelines, our circuit has used the standard of review enunciated in United States v. Lira-Barraza, 897 F.2d 981 (9th Cir.1990). See, e.g., United States v. Todd, 909 F.2d 395 (9th Cir.1990); United States v. Gomez, 901 F.2d 728 (9th Cir.1990). Lira-Barraza, however, has since been ordered to be reheard en banc. Id., 909 F.2d 1370 (9th Cir.1990). The government suggests that we apply that standard here. Because even under that standard we are required to remand, appellant will suffer no harm as a result of our doing so. Accordingly, we can accept the government's suggestions without deciding whether the standard is indeed the correct one.

According to this standard, departures should be reviewed according to the following five-step process:

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" (hereinafter "circumstance");

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission,

(4) if not, whether the circumstance should result in departure; and,

(5) whether the extent or degree of departure was unreasonable.

Id. at 983. Appellant asks that our review center on the fifth issue-- i.e., whether the degree of the departure was unreasonable. We should do so under an abuse of discretion standard: "a district court abuses its discretion if it imposes a sentence which is unreasonable." Id. at 986.

DISCUSSION

Before moving to an analysis of the reasonableness of the degree of the district court's departure, we briefly explain why a departure was perfectly permissible in this case.

A. Reasonableness of Departure

Appellant does not challenge the power of the district court to depart from the applicable guidelines. As the guidelines themselves make clear:

Under 18 U.S.C. Sec. 3553(b) the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists 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."

U.S.S.G. Sec. 5K2.0, p.s. Section 5K2.0 et seq. then identifies a number of factors that the Commission did not fully take into account in formulating the guidelines, such as the presence of a dangerous instrumentality. Sec. 5K2.6. Further, if "national security, public health, or safety was significantly endangered, the court may increase the sentence" Sec. 5K2.14. Even more directly to the point, the section on "Smuggling, Transporting, or Harboring an Unlawful Alien" notes, "The Commission has not considered offenses involving large numbers of aliens or dangerous or inhumane treatment. An upward departure should be considered in those circumstances." Sec. 2L1.1, comment. (n.8).

The district court, therefore, could have departed upward on the rationale that the Since the district court clearly articulated its reasons for departure--i.e., the high-speed chases that endangered public safety--and since those reasons legitimately existed and were not considered by the Sentencing Commission, we hold that departure in this case was reasonable.

car was a dangerous instrumentality, see U.S.S.G. Sec. 5K2.6, that public safety was endangered by such reckless driving, see Sec. 5K2.14, or that the alien passengers were subjected to dangerous treatment. See United States v. Ramirez-DeRosas, 873 F.2d 1177 (9th Cir.1989) (departure from guidelines warranted because high speed was both dangerous to alien passengers and an aggravating circumstance not taken into consideration by the commission); United States v. Marco L., 868 F.2d 1121 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989) (court would have been justified departing for same two reasons).

B. Reasonableness of Degree of Departure

Perez-Magana concedes that the district court gave sufficient reasons for the departure itself; he also concedes the validity of those reasons. He does not, however, believe that the district court gave any explanation for the degree of departure. In other words, he asks what factors led the court to impose a 30-month sentence in lieu of a sentence of another, preferably shorter, length. Brandishing the guidelines' "Sentencing Table," appellant shows that in order to get a 30-month sentence, his offense level would have to jump from 4 to 10, a 250% increase in offense levels and a similar rise in months incarcerated. See Ch.5, Pt.A. He sees this as totally unreasonable, particularly in light of the district court's failure to give any reasons for the degree of its departure. ²

In United States v. Rodriguez-Castro, 908 F.2d 438 (9th Cir.1990), the district court explained its departure thus: " 'The reason I am imposing that term [of 54 months, instead of 12-18] is primarily because of the high-speed chase, the names that you have given each time you have been apprehended in the criminal justice system, [and] the fact that you have been engaged in high-speed chases before.' " Id. at 440. After affirming and then withdrawing our initial opinion, we vacated the sentence and remanded for resentencing. We explained:

Since the district court's departure was grounded in part on the inadequacy of Rodriguez-Castro's criminal history category, the court was obligated to justify the extent of its departure by analogy to the guideline sentences of defendants in a higher criminal history category. Instead, the district court, without saying why, imposed a prison term 36 months in excess of the maximum sentence appellant could have received under the guideline range calculated in the presentence report.

Id. at 443. The district court's departure was based in large part on the past high-speed chases. If the court did not feel that Rodriguez-Castro's criminal history category sufficiently accounted for this, it should have looked to the sentence in a higher category. A sentence in a higher criminal history category, but at the same offense level, would probably have yielded a range of months in the 20's.

In United States v....