U.S. v. Reyes-Ruiz, REYES-RUI

• Decision Date: 13 March 1989
• Docket Number: D,REYES-RUI,No. 88-1632,88-1632
• Citation: 868 F.2d 698
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuelefendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 698

868 F.2d 698

UNITED STATES of America, Plaintiff-Appellee, v. Juan Manuel REYES-RUIZ, Defendant-Appellant.

No. 88-1632

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

March 13, 1989.

Alfredo Villarreal, Asst. Federal Public Defender, San Antonio, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., Sidney M. Glazer, Washington, D.C., for plaintiff-appellee.

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

Before POLITZ, JOHNSON, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Juan Manuel Reyes-Ruiz was sentenced to twenty-four months' imprisonment after he entered a plea of guilty to one count of aiding and abetting the transportation of illegal aliens in violation of 8 U.S.C. Sec. 1324(a)(1)(B) and Title 18 U.S.C. Sec. 2. Reyes appeals to this Court on two grounds: first, he argues that the district court misapplied the sentencing guidelines; second, he claims that the sentence should be vacated due to the district court's failure to comply with the strictures of Rule 11. Because we determine that no reversible error has been shown, we affirm.

I. FACTS AND PROCEEDINGS BELOW

The facts summarized in the plea proceedings indicate that co-defendant Aniceto Escobedo-Gallardo was the employer of Celestine Rodriquez-Soto, a Mexican citizen. Escobedo arranged for Rodriquez and others to illegally enter the United States. On April 29, 1988, Escobedo and the defendant, Reyes, smuggled the aliens into the United States in the back of a pickup truck. The hidden aliens were discovered under a tarp by a border patrol agent. Reyes was arrested, and at that time he admitted that he was transporting aliens illegally. Reyes was later indicted on three counts of aiding and abetting the transportation of illegal aliens. The Government dismissed two counts in exchange for a guilty plea to Count One.

The Presentence Investigation Report prepared by the probation officer indicated that the possible term of imprisonment under the Sentencing Guidelines ranged from eighteen to twenty-four months. ¹ Reyes filed a specific written objection to the presentence report, arguing that the correct imprisonment range was twelve to eighteen months. In his view, the presentence report was in error because it reflected an incorrect offense level computation. The district court, at the sentencing hearing, overruled this objection, and sentenced Reyes to twenty-four months in prison.

II. APPLICATION OF THE SENTENCING GUIDELINES

The Sentencing Guidelines were developed to promote the express purpose of eliminating disparate sentences among defendants with similar records who have been found guilty of similar conduct. The guidelines, however, were structured so as to maintain sufficient flexibility to ensure that certain aggravating and mitigating circumstances could be considered by the sentencing judge. In order to achieve this goal, the primary focus is on the crime committed, rather than on the individual offender. Once applied, the guidelines provide a framework within which the judge can impose a sentence.

The cornerstone of this framework is the determination of the base offense level. This is determined by finding the guideline section most applicable to the statute of conviction. In the instant case, the statute of conviction was 8 U.S.C. Sec. 1324. The appropriate guideline section is Sec. 2L1.1, "Smuggling, Transporting, or Harboring an Unlawful Alien," which corresponds to a base offense level of 9. Base offense levels may be adjusted upward or downward depending on the presence of certain Specific Offense Characteristics. Section 2L1.1(b)(2) indicates that if the "defendant previously has been convicted of smuggling, transporting, or harboring an unlawful alien, or a related offense, increase by 2 levels." Pursuant to this subsection, the presentence report adjusted the offense level upward to 11 due to a prior conviction of aiding and abetting illegal aliens. Finally, pursuant to section 3E1.1(a), the report reduced the offense level by two due to a finding that Reyes had accepted responsibility for his criminal behavior.

The defendant's criminal history is calculated independently of the offense level. Points are assigned to prior convictions depending on the length of the sentence and when the crime was committed. Based on these points, the defendant is assigned one of six different categories. The final sentencing range is calculated by applying a table which cross-references the offense level and the defendant's criminal history category. The criminal history portion of Reyes's presentence report listed four prior convictions. ² The report computed a criminal history score of 8 pursuant to guideline section 4A1.1(b). Two points were subsequently added because the instant offense was committed less than two years after Reyes was released from prison for the September 14, 1987, offense. Reyes's ten criminal history points corresponded with Criminal History Category V. This criminal history category combined with the offense level to result in a potential sentence under the guidelines of eighteen to twenty-four months.

Reyes objected to the computation of the offense level contained in the report. He argued that the offense level was inappropriately increased two levels, making the sentencing range eighteen to twenty-four months, for the offense level of 9, rather than twelve to eighteen months for an offense level of 7. Specifically, Reyes asserted that the Offense Level Computation paragraph of the presentence report

is incorrect as it states that the Defendant was previously convicted of illegally bringing in aliens into the United States. A review of Defendant's criminal history reveals that the Defendant has three convictions for the petty offense of illegal entry and one conviction for the petty offense of aiding and abetting the illegal entry of an alien. In order to increase the base offense level by two levels a defendant must have previously been convicted of: (1) smuggling aliens, or (2) transporting aliens, or (3) harboring aliens, or (4) aiding and abetting, conspiring or attempting to commit such offenses.

The Defendant has no convictions that cause the base level offense to be increased by two levels.

Defendant's Objections to the Presentence Report, Record Vol. 1 at 28.

The district court, at the sentencing hearing, overruled the objection. On appeal, Reyes reiterates his contention that the offense level was erroneously raised two levels. He contends that the "sentencing court's implied finding of fact that Defendant had a prior conviction for an offense comprehended by Guideline Sec. 2L1.1(b)(2) was clearly erroneous." Appellant's Brief at 7.

Our review of the sentence imposed by the district court is governed by 18 U.S.C. Sec. 3742(d):

(d) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines;

(3) is outside the range of the applicable sentencing guideline, and is unreasonable, having regard for--

(A) the factors to be considered in imposing a sentence, as set forth in chapter 227 of this title; and

(B) the reasons for the imposition of the particular sentence, as stated by the district court pursuant to the provisions of section 3553(c); or

(4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable.

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous.

To the extent that this appeal deals with express or implied findings of fact, such as whether the defendant had a prior conviction of the kind comprehended by section 2L1.1(b)(2), we apply the clearly erroneous standard of review. However, on the question of law as to whether a given prior conviction falls within the scope of section 2L1.1(b)(2), our review is de novo. We cannot say that the district court's implied finding of the existence of a conviction for aiding and abetting the illegal entry of aliens was clearly erroneous; ³ consequently, we turn to the question of whether or not such a conviction falls within the scope of section 2L1.1(b)(2) so as to require an upward adjustment of the offense level.

Reyes argues that even if he had a prior conviction of aiding and abetting the illegal entry of another, the upward adjustment in the offense level was not proper. The issue we are called upon to resolve is whether aiding and abetting the illegal entry of another in violation of 8 U.S.C. Sec. 1325 is a "related offense" to smuggling, transporting, or harboring an unlawful alien. For the reasons set forth below, we determine that it is.

The Commentary to section 2L1.1(b)(2) indicates that " 'Convicted of smuggling, transporting, or harboring an unlawful alien, or a related offense' includes any conviction for smuggling, transporting, or harboring an unlawful alien, and any conviction for aiding and abetting, conspiring or attempting to commit such offense." The guidelines further indicate that the term "includes" indicates a non-exhaustive list. Guideline 1B1.1. Reyes argues that the term "related offense" was used in a "restrictive," rather than an expansive manner. In support of this proposition, he points to the Background portion of the Commentary to section 2L1.1 which indicates that a "second specific offense characteristic provides an enhancement if the defendant was previously convicted of a similar offense." Reyes interprets this language as indicating that the adjustment "does not apply unless the prior conviction is related, and similar." Appellant's Brief at 8. He argues that the Commission intended to...