U.S. v. Rodriguez-Castro, RODRIGUEZ-CASTR

• Decision Date: 09 July 1990
• Docket Number: D,RODRIGUEZ-CASTR,No. 89-50093,89-50093
• Citation: 908 F.2d 438
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguelefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 438

908 F.2d 438

UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ-CASTRO, Defendant-Appellant.

No. 89-50093.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1989.

Decided May 10, 1990.

Withdrawn July 9, 1990.

Opinion Filed July 9, 1990.

Shawn M. Hays, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Judith S. Feigin and Michael J. Dowd, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.

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

Before HUG, HALL and WIGGINS, Circuit Judges.

ORDER

The opinion filed May 10, 1990, is hereby WITHDRAWN. The opinion submitted herewith shall be filed in its stead.

OPINION

CYNTHIA HOLCOMB HALL, Circuit Judge:

Miguel Rodriguez-Castro challenges the sentence imposed upon him after he pled guilty to transportation of an undocumented alien, a violation of 8 U.S.C. Sec. 1324(a)(1)(B). Rodriguez-Castro argues that his 54-month prison term is outside the range of the applicable Sentencing Guideline ("the guidelines") and is unreasonable. He further contends that his sentence is illegal because the combination of his terms of imprisonment and supervised release exceeds the statutory maximum. Although we agree with most of the district court's reasoning, we must remand on the basis that the court failed to adequately explain the extent of its departure.

I

On January 2, 1988, border patrol agents saw a pickup truck stop near the United States-Mexico border and turn off its lights. As the agents watched, several people ran from the border and entered the truck which then proceeded west, still with its lights off. The agents activated their red lights and attempted to stop the vehicle, but the driver, later identified as Rodriguez-Castro, refused to yield. Instead, he led the agents on a three-mile chase at speeds as high as 75 miles per hour. Rodriguez-Castro was apprehended only after he jumped from the truck while it was still moving. Although the vehicle contained fifteen passengers, no one was injured.

Rodriguez-Castro has a history of convictions for immigration offenses, including three convictions for illegal entry and two for aiding and abetting illegal entry. On at least one prior occasion, he led the police on a similar high speed chase in which he rammed a border patrol vehicle with a stolen automobile containing fourteen undocumented aliens. During each of his five previous arrests, Rodriguez-Castro gave the authorities a different false name.

The applicable guideline range for Rodriguez-Castro's present offense, as indicated in the presentence report, is 12 to 18 months. The district court nonetheless departed from the guidelines and sentenced Rodriguez-Castro to 54 months in prison followed by three years of supervised release, stating: "The reason I am imposing that term 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." This appeal followed.

II

We review district court departures from the guidelines under the five-step standard announced in United States v. Lira-Barraza, 897 F.2d 981, 983-86 (9th Cir.1990). The first step requires us to verify that the district court stated its reasons for departure. "In addition, we require the district court to identify the specific aggravating or mitigating circumstance present in the case, and to make a clear finding that the [Sentencing] Commission did not adequately consider that circumstance." Id. at 983 (citations omitted). The court below complied with these requirements by listing three reasons for its departure from the guidelines: the high-speed chase, the fact that Rodriguez-Castro repeatedly had used fictitious names when arrested, and the fact that Rodriguez-Castro had been involved in a similar high-speed chase before. The court's finding that the Sentencing Commission ("the Commission") did not adequately consider these circumstances is implicit in its discussion. ¹

The second step of our review requires a determination of whether the circumstances identified by the district court as warranting departure actually exist. In essence, this step calls for a review of a district court's factual findings, and is thus subject to clearly erroneous review. See id. at 984. We are unprepared to say that the court below committed clear error by finding that appellant either repeatedly provided authorities with fictitious names when arrested or previously engaged in a high-speed chase with law enforcement officials. Appellant does not even dispute these findings. And although appellant insists that he did not engage in a chase prior to being arrested for the crime for which he was sentenced below, the district court did not err by finding otherwise. Rodriguez-Castro admits he was traveling at a high rate of speed. He claims, however, that he did not immediately notice the patrol unit behind him. He further contends that he attempted to stop the truck when he realized he was being followed, but that the vehicle continued to move slowly after he left the driver's seat. The court below effectively disbelieved Rodriguez-Castro's explanation, a conclusion which strikes us as eminently reasonable.

The third step of our review requires that we determine "whether [each] circumstance identified by the district court as justifying departure qualifies as '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.' " Id. (quoting 18 U.S.C. Sec. 3553(b)). This is a question of law mandating de novo review. See id. at 985. If the circumstance does so qualify, we proceed to the fourth step, in which we review the district court's actual decision to depart from the guidelines pursuant to the identified circumstance under the abuse of discretion standard. Id. We have already held both that the Commission did not adequately consider high-speed chases when formulating the guidelines and that a court may properly depart upwards from the guideline sentence on this basis. See id. at 987; United States v. Ramirez-DeRosas, 873 F.2d 1177, 1179 (9th Cir.1989); United States v. Marco L., 868 F.2d 1121, 1124 n. 2 (9th Cir.1989) (dicta); see also United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989) (high-speed chase justifies departure only when defendant was driver of vehicle). The Lira-Barraza, Ramirez-DeRosas, and Marco L. decisions rely upon an application note to the guideline for illegal transportation of aliens stating that the Commission did not consider "offenses involving large numbers of aliens or dangerous or inhumane treatment." United States Sentencing Commission, Guidelines Manual Sec. 2L1.1 application note 8 (1989) [hereinafter Sentencing Guidelines]. Indeed, the district court below obviously was concerned about the danger the high-speed chase posed to the aliens in the pickup truck: "Because you didn't want to be apprehended, you jeopardized the lives of all those people. I can imagine that was a very terror-filled ride in that pickup truck." But the court also indicated that Rodriguez's high-speed driving endangered the safety of people on the highway generally: "I think the people who use the highways in this country are entitled to feel that the people who drive the cars on the highway with them have some semblance of common decency and will drive their cars in a reasonable manner." This concern warrants departure based upon Sentencing Guidelines Sec. 5K2.14, which provides that "[i]f national security, public health, or safety was significantly endangered, the court may increase the sentence above the guideline range to reflect the nature and circumstances of the offense."

As for appellant's repeated use of fictitious names, we previously identified such conduct as not adequately considered by the Commission and as a justifiable ground for departure. See United States v. Montenegro-Rojo, No. 89-50134, slip op. 3695, 3704 (9th Cir., Apr. 12, 1990) (past use of alias justifies departure on basis of criminal history); Hernandez-Vasquez, 884 F.2d at 1316 (repeated use of aliases justifies departure generally).

The fact that Rodriguez-Castro previously had engaged in a similar high-speed chase was not adequately taken into consideration by the Commission. We have held that repetitive conduct is sufficiently unusual to satisfy step three of our review. See Montenegro-Rojo, slip op. at 3704-06. We have also held that where such conduct poses a danger to others, departure is warranted under step four of our review. See id. at (repeated trolley misconduct by alien upon entry into United States justifies departure). Appellant's pattern of engaging law enforcement officials in a high-speed chase justifies the district court's departure since it indicates that he poses a continuing threat to drivers in San Diego.

The fifth step of our review asks whether the degree of the district court's departure is "unreasonable" within the meaning of 18 U.S.C. Sec. 3742(e)(3). We review the reasonableness of the district court's departure pursuant to the abuse of discretion standard. See Lira-Barraza, 897 F.2d at 986. Rodriguez-Castro argues that since the sentence imposed by the district court was three times in excess of the guideline sentence, it is unreasonable by definition. He also contends that...