U.S. v. Rios-Favela

• Decision Date: 25 June 1997
• Docket Number: RIOS-FAVEL,D,No. 96-50128,96-50128
• Citation: 118 F.3d 653
• Parties: 97 Cal. Daily Op. Serv. 4957, 97 Daily Journal D.A.R. 8057 UNITED STATES of America, Plaintiff-Appellant, v. Jesus Manuelefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 653

118 F.3d 653

97 Cal. Daily Op. Serv. 4957, 97 Daily Journal

D.A.R. 8057

UNITED STATES of America, Plaintiff-Appellant, v. Jesus Manuel RIOS-FAVELA, Defendant-Appellee.

No. 96-50128.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1997.

Decided June 25, 1997.

Becky S. Walker and Miriam A. Krinsky, Assistant United States Attorneys, Los Angeles, CA, for plaintiff-appellant.

Korey House, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellee.

Appeal from the United States District Court for the Central District of California; Audrey B. Collins, District Judge, Presiding. D.C. No. CR-95-00796-ABC.

Before: D.W. NELSON and TROTT, Circuit Judges, and BRYAN, ^* District Judge.

TROTT, Circuit Judge:

I. Overview

The Government appeals Jesus Manuel Rios-Favela's ("Defendant") sentence imposed after he pled guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. §§ 1326(a), (b)(1) and (b)(2). Applying section 2L1.2(b)(2) of the Sentencing Guidelines, the court adjusted the base offense level upward sixteen levels; however, it then departed downward ten levels based in part on its finding that Defendant's aggravated felony conviction was not serious enough to warrant a sixteen-level increase. We must determine whether the district court had legal authority to consider the underlying facts of Defendant's aggravated felony conviction as a basis for departure. Because we conclude that the Sentencing Commission adequately considered the nature of the underlying convictions when it formulated the section 2L1.2 guidelines and determined which prior offenses warranted a sixteen-level adjustment, we hold that the district court had no legal authority to depart based on the facts of Defendant's predicate offense.

II. Background

In July 1995, the California Parole Office reported Defendant to the INS as an alien who had reentered the United States following felony convictions and deportation. After confirming Defendant's two prior deportations and the absence of an application for reentry, the INS arrested Defendant. The indictment alleged that prior to his deportation, Defendant had been convicted of the following offenses: sale or transportation of a controlled substance in violation of California Health and Safety Code § 11352(a)-an aggravated felony; possession of a controlled substance in violation of California Health and Safety Code § 11350(a)-a felony; and possession of a firearm by a felon in violation of California Penal Code § 12021(a)-a felony. As a result of his arrest in the instant case, Defendant pled guilty to one count of illegal reentry in violation of sections 1326(a), 1326(b)(1), and 1326(b)(2).

The Probation Office applied section 2L1.2(b)(2) of the Sentencing Guidelines and calculated Defendant's offense level as follows: base level of eight, plus sixteen for the prior aggravated felony, minus three for acceptance of responsibility, for a total offense level of twenty-one. In addition to the three convictions alleged in the indictment, Defendant also had convictions for possession of a dangerous weapon, exhibiting a deadly weapon, felon in possession of a firearm, and obstructing or resisting a police officer. As a result of these convictions, Defendant had a criminal history category of VI. The Probation Office determined the sentencing range to be 77 to 96 months. It identified no factors warranting departure.

The Pre-Sentencing Report ("PSR") provided only minimal facts regarding Defendant's aggravated felony conviction for sale or transportation of a controlled substance: officers saw Defendant and a juvenile selling cocaine and marijuana to several people; they then made an undercover purchase of cocaine and marijuana from Defendant and the juvenile. The PSR did not report the quantity of drugs involved. For this offense, Defendant was originally sentenced to three years probation with 270 days in jail; however, his probation was subsequently revoked and he was sentenced to three years imprisonment.

Defendant requested downward departures based on: 1) his near completion of his parole term; 2) his "voluntary disclosure" of his illegal reentry by reporting to his parole officer; 3) his unique family circumstances; and 4) the possibility that he might be subjected to more severe punishment because of his immigration status. The Government opposed departure on any of these grounds, as did the Probation Office.

The Probation Office filed a Second Addendum to the PSR, drawing the court's attention to United States v. Cuevas-Gomez, 61 F.3d 749 (9th Cir.1995), and stating that if the court were to find that Defendant's aggravated felony was comparatively minor, it could depart. The Probation Office did not recommend such a departure, however, because of the absence of information regarding the aggravated felony.

On January 29, 1996, the court held a sentencing hearing at which it invited Defendant to seek a downward departure pursuant to Cuevas-Gomez. Defendant's counsel argued that the aggravated felony was "relatively minor" and did not warrant the sixteen-level increase. Although counsel did not know the quantity of drugs involved, she asserted that if there had been a significant amount, the quantity would have been included in the police and probation reports. The Government opposed the departure.

The district court considered Defendant's four requested grounds of departure-near parole completion, voluntary disclosure, unique family circumstances, and immigration status-but found that none justified a downward departure. Nevertheless, it departed downward ten levels based on the minor nature of the aggravated felony and other equitable factors, ¹ stating:

[T]he Court does feel that based on United States v. Cuevas-Gomez, it is appropriate to depart downward. The sixteen-level adjustment is a very high and serious one, and it should definitely be supported by a serious crime, and although, of course, the crime in question does fit within the guidelines requiring the sixteen-point adjustment, the Court now is aware that it has the discretion to depart downward....

The crime was a serious one and the Court is never one to downgrade the seriousness of selling narcotics, especially as here when there's a juvenile who was allegedly involved. However, the Court does find that in this case, it would be a disproportionate punishment to aggravate the Defendant's crime by sixteen points, given the other facts that have been pointed out that are equitable factors in his favor--the fact that he was no longer engaged in that type of activity, and that he was almost at the end of his parole period. These are factors that the Court does consider in his favor, and as to the crime itself, there is no showing of how much was involved, how serious it was, or the amount involved.

The resulting offense level was eleven, with a sentencing range of 27-33 months. The court imposed a sentence of 30 months imprisonment.

III. Standard of Review

The district court's decision to depart from the guidelines is reviewed under the abuse of discretion standard. Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392 (1996). "The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions." Id.

IV. Discussion

A. Legal Authority To Depart

Under 18 U.S.C. § 3553(b), a court is authorized to depart from the guideline range 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.

See USSG § 5K2.0, p.s. In Cuevas-Gomez, 61 F.3d at 750, we held that section 3553(b) applies to sentences calculated under section 2L1.2(b)(2). Cuevas-Gomez, however, is not dispositive, because it concluded only that the district court retained its general authority to consider a defendant's individual circumstances. Id. (citing United States v. Estrada-Plata, 57 F.3d 757, 763 (9th Cir.1995)). The sentencing court in that case was considering a departure based on overstatement of the defendant's criminal history level, not on the minor nature of the predicate offense. A departure based on criminal history overstatement is already authorized under section 4A1.3 of the Sentencing Guidelines. The Cuevas-Gomez court simply held that, when applying section 2L1.2(b)(2), a district court is not stripped of the discretion to depart that is otherwise authorized by the Sentencing Guidelines:

The district courts have statutory authority to depart from the Guidelines in those cases in which the court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. § 3553(b); USSG § 5K2.0 (policy statement regarding departure). Nothing in section 3553(b) or in the Guidelines suggests that the district court's departure authority does not extend to USSG § 2L1.2(b)(2).

Id. Cuevas-Gomez does not speak to whether the Sentencing Commission adequately considered the nature of the aggravated felonies when it determined which of those offenses justified a sixteen-level adjustment; whether the Sentencing Commission did adequately consider the nature of the Defendant's predicate felony is the question we now face. ²

The Supreme Court has said that the Sentencing Commission did not adequately take into consideration cases that are unusual or atypical, but that it carved out a heartland for each guideline. Koon, --- U.S. at ----, 116 S.Ct. at 2044. Defendant argues that a "simple street sale" is outside the section 2L1.2(b)(2) heartland. Though he concedes the felony is serious, he contends it does not compare with other aggravated felonies such as murder, crimes of violence, or major drug...