U.S. v. Romero

• Decision Date: 18 June 2002
• Docket Number: No. 01-10354.,01-10354.
• Citation: 293 F.3d 1120
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maria ROMERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

293 F.3d 1120

UNITED STATES of America, Plaintiff-Appellee, v. Maria ROMERO, Defendant-Appellant.

No. 01-10354.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 16, 2002.

Filed June 18, 2002.

Rimantas A. Rukstele, Assistant United States Attorney, Las Vegas, NV, for plaintiff-appellee.

Rene L. Valladares, Assistant Federal Public Defender, Las Vegas, NV, for defendant-appellant.

Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, District Judge, Presiding. D.C. No. CR-00-121-RLH.

Before HAWKINS and SILVERMAN, Circuit Judges, and RESTANI, Judge.^*

OPINION

RESTANI, Judge.

Maria Romero appeals the sentence imposed following her guilty plea to False Personation of an Officer or Employee of the United States, in violation of 18 U.S.C. § 912. Romero defrauded immigrants by posing as an employee of the Immigration and Naturalization Service ("INS") who promised to expedite their applications in exchange for money. Romero disputes the two-level enhancement she received under § 2F1.1(b)(4)(A) of the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guideline"),¹ which relates to offenses involving "misrepresentation that the defendant was acting on behalf of... a government agency." Romero claims that application of the enhancement constitutes an impermissible double-counting, and that her conduct falls outside the scope of the enhancement. Romero, who faces deportation, also contends that the district court erroneously ruled that it lacked the authority to grant a downward departure based on Romero's family ties, cultural assimilation, and the custodial conditions of aliens. We affirm.

Factual and Procedural Background

On March 29, 2000, Maria Romero ("Romero") was indicted on two counts of false personation of an officer or employee of the United States, in violation of 18 U.S.C. § 912(2).² Count One charged that between April and July 1999, Romero "did knowingly and falsely assume and pretend to be an officer and employee of the United States" and demanded and obtained money from Maria Flores and Antonia Munoz. Count Two involved the same allegations, except that the time period was July 1999 and involved a different alleged victim. On December 13, 2000, Romero pled guilty to both charges.

The Probation Department subsequently prepared a Presentence Report ("PSR") to calculate Romero's offense. The PSR explains the applicable Guideline section for computing the Offense Level as follows:

Counts 1 & 2—False Personation of Officer or Employee of the United States 18 U.S.C. § 912(2) and U.S.S.G. § 2J1.4. U.S.S.G. § 2J1.4(c) states [t]hat if the impersonation was to facilitate another offense, apply the guideline for an attempt to commit that offense, if the resulting offense level is greater. The defendant attempted to commit fraud, therefore, § 2F1.1 was used to calculate the defendant's Offense Level.

The application of U.S.S.G. § 2F1.1 resulted in a base offense level of 6, to which the following specific offense characteristics were added: (1) three levels because "the defendant defrauded victims in the amount of $10,725"; (2) two levels because "the offense involved more than minimal conduct"; and (3) two levels because "the defendant misrepresented that she was acting on behalf of ... a government agency." The defendant also received a two-level reduction for acceptance of responsibility, resulting in a Total Offense Level of 11.

Romero filed an objection to the Probation Department's application of the two level § 2F1.1(b)(4)(A) upward adjustment, claiming that it was not applicable because she was not acting on behalf of the INS in order to perpetuate a fraud. She also argued that the adjustment should not apply because she was not trying to exploit the victims' trust in the government. Romero then brought a motion for a downward departure based on (1) extraordinary circumstances regarding family ties; (2) cultural assimilation; (3) the fact that deportable aliens face objectively more severe custodial conditions than a non-alien; and (4) the totality of the circumstances.

After hearing arguments on the issue of "double counting," the district court, on June 5, 2001, overruled Romero's objection to the two-level upward adjustment and denied her motion for downward departure. The court imposed a sentence at a base offense level 11, with criminal history category I. Romero was accordingly sentenced to a ten-month term of incarceration, which she is currently serving. Romero is subject to deportation to Mexico.

Jurisdiction and Standard of Review

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). On issues arising under the Guidelines, review of the district court's factual findings is for clear error and review of its legal interpretations is de novo. United States v. Parrilla, 114 F.3d 124, 126 (9th Cir.1997); United States v. Newland, 116 F.3d 400, 402 (9th Cir.1997).

Discussion

I. The District Court's imposition of a two-level enhancement to Romero's Total Offense Level under § 2F1.1(b)(4)(A) did not result in impermissible double-counting.

Romero argues that the district court committed double-counting because the two-level enhancement for "misrepresentation" under Guideline § 2F1.1 ("Fraud and Deceit") is based on a type of harm that already had been taken into consideration in assigning her base offense level. Romero reasons that the crime with which she was charged, False Personation of an Officer or Employee of the United States, 18 U.S.C. § 912, corresponds to Guideline § 2J1.4 ("Impersonation"), which requires cross-reference to other Guideline sections if the impersonation was to facilitate another offense, but only "if the resulting offense level is greater than[six levels]." U.S.S.G. § 2J1(c)(1). Romero construes this limitation on cross-referencing to mean that the six points of the base offense level of § 2J1.4 is necessarily "embedded" in the six point base offense level of § 2F1.1. Romero's argument lacks merit.

Impermissible double counting "occurs where one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by the application of another part of the Guidelines." United States v. Archdale, 229 F.3d 861, 869 (9th Cir.2000) (citation omitted). See also United States v. Snider, 976 F.2d 1249, 1252 (9th Cir.1992) (double counting is impermissible where one Guideline provision "is akin to a `lesser included offense' of another," yet both are applied). In this case, two parts of the Guidelines were not cumulatively applied, and there is no impermissible double-counting.

In determining the Guideline section on which Romero's sentence should be based, the Sentencing Commission first looked to § 2J1.4, as the Commentary to this Guideline indicates that the corresponding statutory provisions are 18 U.S.C. §§ 912 and 913. See U.S.S.G. § 1B1.2(a); United States v. Saavedra, 148 F.3d 1311, 1315 (11th Cir.1998) (the statutory provisions portion of an offense Guideline commentary lists statutes of conviction, for which the district court selects the corresponding offense guideline). The Background Note to § 2J1.4 specifies that "[t]his section applies to impersonation of a federal officer, agent or employee [corresponding to the first clause of § 912]; and impersonation to conduct an unlawful search or arrest [corresponding to § 913]".

After the offense guideline is selected, the relevant conduct guideline, U.S.S.G. § 1B1.3, is applied to capture the real offense behavior and the characteristics of the defendant through specific offense characteristics and cross references. See U.S.S.G. §§ 1B1.2(b), 1B1.2, cmt. (n.2); see also United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989) ("Once the court determines the proper guideline, ... the Guidelines instruct it to determine the applicability of various adjustments ... by looking to the offender's actual conduct.") (emphasis in original). When the offense of conviction's corresponding offense guideline contains a cross-reference, the district court substitutes the applicable cross-referenced offense guideline in order to calculate the statute of conviction's offense guideline range.

In this case, Guideline § 2J1.4(c)(1) provides for cross-referencing to other Guideline sections.³ This provision states that if the impersonation was to facilitate another offense, the Guideline for an attempt to commit that offense should be applied, but only if the resulting offense level is greater than six.⁴ U.S.S.G. § 2J1.4(c)(1). Because Romero pled guilty to the charge of impersonating an INS employee to facilitate the commission of a fraud (under the second clause of Section 912), the court cross-referenced § 2F1.1, the Guideline for fraud and deceit.⁵ Naturally, if Romero had simply impersonated a government officer or employee without trying to commit another offense, then the cross-reference in § 2J1.4 to § 2F1.1 would not apply, and the base level would be six. Instead, Romero was charged with an offense beyond impersonating an officer, i.e., impersonation for the purpose of "demand[ing] or obtain[ing]" money, thereby requiring cross-reference to § 2F1.1. See 18 U.S.C. § 912 ("whoever ... in such pretended character demands or obtains any money, paper, document, or thing of value ...").

Thus far, the Ninth Circuit has not addressed the propriety of applying the two-level enhancement under § 2F1.1(b)(4)(A) after cross-referencing from § 2J1.4(c)(1).⁶ We determine that the application of § 2F1.1(b)(4)(A) is necessary to reflect both wrongful aspects of Romero's conduct: the "pretended character" in conjunction with the "obtaining money." "The decision to apply a guideline cross-referenced within another guideline is fact-dependent." United States v. Morgan, 164 F.3d 1235, 1238 (9th Cir.1999). Cross-references are determined by considering, inter alia, "all acts ......