U.S. v. Reyes

• Citation: 8 F.3d 1379
• Decision Date: 03 November 1993
• Docket Number: 92-30059,Nos. 92-30030,s. 92-30030
• Parties: UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Armando REYES, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1379

8 F.3d 1379

62 USLW 2355

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Armando REYES, Defendant-Appellee, Cross-Appellant.

Nos. 92-30030, 92-30059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1992.

Decided Nov. 3, 1993.

Charles F. Gorder, Jr., Asst. U.S. Atty., Portland, OR, for plaintiff-appellant-cross-appellee.

Rita J. Radositiz, Asst. Federal Public Defender, Eugene, OR, for defendant-appellee-cross-appellant.

Appeal from the United States District Court for the District of Oregon.

Before: HUG, FLETCHER and BRUNETTI, Circuit Judges.

FLETCHER, Circuit Judge:

The Government appeals the district court's downward departure from the Sentencing Guidelines in sentencing career offender Reyes. It argues that the district court ignored the career offender guideline provisions, U.S.S.G. § 4B1.1, by departing from a sentencing range of 210-262 months and setting a sentence of thirty-three months. Reyes cross-appeals the district court's failure to allow a waiver of jury trial under Fed.R.Civ.P. 23. Defendant argues that the court should have required the Government to articulate a non-racial motive for its refusal to consent to waiver. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The jurisdiction of this court rests on 18 U.S.C. § 3742(b) (Sentencing Guidelines) and 28 U.S.C. § 1291 (Final Judgments).

FACTS

Armando Reyes, a twenty-nine-year-old citizen of Mexico, illegally crossed the border to the United States at the age of fourteen. He has been deported to Mexico four times, the last as the result of a felony drug conviction. (PSR 3). In October 1990, within two months following his most recent deportation, he was arrested by the Portland Police Bureau for selling 2.8 grams of marijuana in the Old Town section of Portland. At that time another 2.7 grams of marijuana was found in his possession. Over a month later, in November 1990, Reyes sold .14 grams of cocaine to an undercover officer. Prior to arrest he swallowed the remaining drugs in his possession.

The Government became involved in this case upon the discovery of Reyes' status as an illegal alien. It brought a three-count Grand Jury Indictment for distributing marijuana (under 21 U.S.C. § 841(a)(1)), distributing cocaine (also under 21 U.S.C. § 841(a)(1)), and for illegal reentry (under 8 U.S.C. § 1326). Reyes filed a trial memorandum waiving his right to a jury trial and requesting that the court order a bench trial over the Government's objection. The court denied the request and the jury found Reyes guilty on all three counts.

According to the presentence report, Reyes has been arrested and sentenced for six other offenses: (1) in 1984 in California for use of opiates; (2) in 1987 in California for possessing for sale of six "baggies" of marijuana; (3) in 1987 in Washington for attempted theft from a department store; (4) in 1987 in Washington for obstructing a public officer; (5) in 1989 in Oregon for possession of drugs (including .45 grams of cocaine and .10 grams of heroin); and (6) in 1989 in Oregon for possessing and delivering $20-worth of cocaine. ¹ The probation officer computed Reyes' criminal history and offense level points without reference to the career offender provisions of the guidelines. He assigned Reyes a base offense level of twelve, adjusting it to fourteen for multiple counts, and calculated criminal history points of twelve, placing Reyes in criminal history category V. The resulting guideline range was 33-41 months.

In its objections to the report, the Government pointed out that the previous drug-related offenses triggered the application of the career offender provisions, U.S.S.G. § 4B1.1. ² Under these provisions, because the offense of conviction ³ was subject to a maximum statutory penalty of twenty years, 21 U.S.C. § 841(b)(1)(C), Reyes qualified for a base offense level of thirty-two. As a career offender, he automatically fell within criminal history category VI. The career offender sentencing range is 210-262 months, producing a choice of sentences almost seven times as long as those applicable under non-career offender guidelines.

The probation officer did not modify his prior report and recommendation. The report recommended that if the career offender provisions were found to apply, a downward departure be made from the applicable range. The sentencing judge agreed with the Government that the career offender provisions applied to Reyes, but, on the recommendation of the probation officer and defense counsel, departed from the career offender range and fixed a sentence of thirty-three months. He also ordered a three-year term of supervised release and participation in a substance abuse treatment program.

STANDARDS OF REVIEW

Under the three-part standard of review set forth for downward departures from the Sentencing Guidelines by United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en banc); United States v. Valdez-Gonzalez, 957 F.2d 643 (9th Cir.1992); United States v. Floyd, 945 F.2d 1096, 1098-99 (9th Cir.1991), the panel must (1) review de novo whether the district court was authorized to depart downward from the career offender section of the guidelines; (2) review for clear error factual findings supporting the existence of circumstances which justify downward departure; (3) review for abuse of discretion the reasonableness of the extent of departure within the meaning of 18 U.S.C. §§ 3742(e)(3) and (f)(2). United States v. Martinez-Gonzalez, 962 F.2d 874 (9th Cir.1992).

Whether the district court should have allowed the defendant to waive trial by jury over the objection of the Government is a question of law and subject to de novo review. United States v. McConney, 728 F.2d 1195, 1200-1201 (9th Cir.), cert. denied 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

I. DOWNWARD DEPARTURE FROM CAREER OFFENDER CATEGORY

In accordance with its mandate from Congress, ⁴ the Sentencing Guidelines Commission set forth provisions to enhance substantially the sentences received by career offenders, including "repeat drug offenders" and "repeat drug traffickers." ⁵ Under the guidelines:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. Although the career offender guidelines do not set out particular grounds upon which a court may depart downward from recommended sentencing ranges, the Ninth Circuit and other circuits In sentencing Reyes, the district court found the career offender guidelines applied. However, he explained:

                have held that the sentencing judge may "rely on 'any ... policy statement[ ] or commentary in the guidelines that might warrant consideration in imposing sentence.' "  United States v. Lawrence, 916 F.2d 553, 554 (9th Cir.1990) (citing U.S.S.G. § 1B1.1);  see also United States v. Bowser, 941 F.2d 1019, 1023 (10th Cir.1991);  United States v. Pinckney, 938 F.2d 519, 521 (4th Cir.1991);  United States v. Adkins, 937 F.2d 947, 951 (4th Cir.1991);  United States v. Senior, 935 F.2d 149, 151 (8th Cir.1991);  United States v. Brown, 903 F.2d 540, 545 (8th Cir.1990).   Since it is well established that a downward departure from career offender status is permissible, Lawrence, 916 F.2d at 554, we look only to the circumstances of this case to determine whether the district court's stated basis for departure is appropriate
                

I am going to depart downward to the level 14 and the range of 33 to 41 months. I think in this case it's clear that the previous criminal history seriously overrepresents the history from the standpoint of the Guidelines. I can't conceive that the Guidelines didn't intend to give a judicial officer authority to depart downward under circumstances such as this. That being the case, I will depart.

Immediately before imposing this sentence the court noted that Reyes was guilty of very "minor offense[s]," and reasoned against sentencing "comparatively minor offenders ... to prison as long as the Guidelines would indicate." (ER 20). Adopting the recommendation of the probation officer, the court relied on Sections 4A1.3 and 5K2.0 which authorize departure in "limited circumstances." See United States v. Cruz-Ventura, 979 F.2d 146, 150 (9th Cir.1992) (citing United States v. Streit, 962 F.2d 894, 903 (9th Cir.1992)).

A. Appropriate Basis

Downward departure is not permitted unless the district court has identified a "mitigating circumstance of a kind or to a degree" the Sentencing Commission did not adequately take into account when formulating the guidelines. 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. A reviewing court "must consider the reasons for departure actually articulated by the sentencing court." United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir.1990). ⁶ "There is, however, no requirement that the sentencing judge recite the specific language of 18 U.S.C. § 3553(b)," the same language incorporated in Section 5K2.0. United States v. Sanchez, 933 F.2d 742, 745 (9th Cir.1991); United States v. Ramirez Acosta, 895 F.2d 597, 601 (9th Cir.1990).

Section 4A1.3 indicates that

[t]here may be cases where the court concludes that a defendant's criminal history category significantly over-represents the seriousness of a defendant's criminal history.... The court may conclude that the defendant's criminal history was significantly less serious than that of most defendants in the same criminal history category ... and therefore consider a downward departure from the guidelines.

In the district court's view, Reyes' criminal history suggested he was a "comparatively minor offender." His conduct was not at all of the magnitude...