U.S. v. Tejada-Beltran

• Decision Date: 06 March 1995
• Docket Number: TEJADA-BELTRA,A,No. 94-1780,94-1780
• Citation: 50 F.3d 105
• Parties: UNITED STATES of America, Appellee, v. Maximo E.lias, etc., Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 105

50 F.3d 105

63 USLW 2687

UNITED STATES of America, Appellee, v. Maximo E. TEJADA-BELTRAN, Alias, etc., Defendant, Appellant.

No. 94-1780.

United States Court of Appeals, First Circuit.

Heard March 6, 1995.

Decided March 31, 1995.

Jose M. Feliciano-Valera, Trujillo Alto, PR, on brief, for appellant.

Guillermo Gil, U.S. Atty., Washington, DC, Jose A. Quiles-Espinosa, Sr. Litigation Counsel, and Jeanette Mercado-Rios, Asst. U.S. Atty., Hato Rey, PR, on brief, for appellee.

Before TORRUELLA, Chief Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

This is another in the ever-lengthening queue of sentencing appeals that have crowded federal appellate dockets since the advent of guideline sentencing. After carefully considering appellant's asseverations, we affirm.

I. BACKGROUND

Because appellant's conviction and sentence stem from a guilty plea rather than a trial, we derive the pertinent facts from the presentence investigation report (PSI Report) and the transcripts of the change-of-plea and disposition hearings. See United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

On September 20, 1993, federal authorities arrested two women, both of whom were citizens of the Dominican Republic, at San Juan's principal international airport. ¹ The women had unsuccessfully attempted to gain entry into the United States using ersatz passports. In short order, the authorities determined that defendant-appellant Maximo E. Tejada-Beltran (Tejada) had furnished the bogus documents and had offered to pay a student apprentice employed on a part-time basis by the Immigration and Naturalization Service (INS) $1,000 per head to ensure his clients' unlawful entry.

On September 24, the apprentice arranged a meeting between Tejada and an undercover agent. During the course of this session, appellant offered to pay the agent, who was posing as a corrupt INS inspector, a bounty of $1,000 for each alien who was permitted to sneak into the United States from the Dominican Republic. The men struck a deal. Appellant suggested that the bribes be paid at the inspection booth coincident with the illegal entries and forecast that clients would begin to arrive between September 26 and October 2.

On October 2, appellant spoke with the agent, told him he had scheduled an arrival for the next day, described the traveller, and confirmed that he would be carrying a fraudulent passport made out in an assumed name. Appellant informed the agent that the alien would pay him upon arrival. On October 3, the alien reported to the inspection booth and handed the agent an envelope containing $1,000 in cash. The agent thereupon facilitated the smuggle. That evening, appellant confirmed his client's successful entry and told the agent that his father, who lived in Puerto Rico, would retrieve the fraudulent passport so that it could be recycled for future use. He also speculated that, in the future, his father, rather than his clients, might make the payoffs to the agent.

In the weeks that followed, appellant identified a steady stream of clients to the agent, regularly promising to pay him $1,000 for each illegal alien who entered without incident. These arrangements were consummated client by client, on different dates. On each occasion appellant provided the agent with the name and description of the alien or aliens in question, the anticipated arrival date, and a suggested method of payment. For example, on October 7, appellant arranged for the agent to admit two clients bearing resident alien cards that belonged to relatives. The next day, when the aliens gained entry, each of them delivered an envelope containing $1,000 to the agent. ²

Appellant often boasted about his connections. He told the agent that he had people in Puerto Rico who would pay United States citizens to petition the State Department for passports or kindred documents, and then turn them over to appellant for use in his nefarious scheme. Appellant also bragged about a wide array of quondam accomplices: a person who had access to sophisticated machinery that could be used to alter authentic documents, such as United States passports and alien registration cards, and who would forge documents for him in the Dominican Republic; two immigration inspectors at airports in the Dominican Republic who accepted bribes to assist in the smuggles; a person in New York who would facilitate the illegal immigration of aliens entering the country via New York; and an individual in Miami who, on request, would obtain "secure" ink (supposedly available only to the government) that could then be used to doctor United States passports. In addition to this cadre of confederates, appellant also mentioned that he would from time to time hire attorneys to represent aliens caught in the toils when planned entries went awry.

Between October 16 and November 6, appellant negotiated the illegal entry of at least seven more clients. When, thereafter, appellant told the agent that he wanted two particular aliens admitted, and that he, personally, would pay $2,000 to smooth the way, the INS decided to spring the trap. The authorities arrested appellant on November 16 while he was delivering the $2,000 gratuity to the agent. At the time of his apprehension, arrangements had already been made for the illegal entry of three more aliens (scheduled to arrive later that day).

In a matter of weeks, a federal grand jury handed up a 22-count indictment (summarized in the Appendix). The first ten counts charged appellant with encouraging or inducing specified aliens illegally to enter the United States, in violation of 8 U.S.C. Sec. 1324(a)(1)(D); the next five counts charged appellant with furnishing altered passports to specific aliens to be used to gain admittance into the United States, in violation of 18 U.S.C. Sec. 1543; and the remaining seven counts charged appellant with bribery of a public official, in violation of 18 U.S.C. Sec. 201(b)(1)(C).

After some preliminary skirmishing (not relevant here), appellant pled guilty to four counts of encouraging or inducing aliens illegally to enter the United States (counts 1, 3, 5, 6), three counts of furnishing altered passports (counts 11, 13, 14), and three counts of bribery (counts 16, 17, 18). On June 24, 1994, the district court convened the disposition hearing. ³ Relying for the most part on the findings and recommendations contained in the PSI Report, the court treated the bribery counts as predominant; set the base offense level at 10, see U.S.S.G. Secs. 2C1.1, 3D1.3; raised it by two levels because appellant's misconduct involved multiple bribes, see U.S.S.G. Sec. 2C1.1(b)(1); applied an increase of three more levels because the bribes, in the aggregate, had a value in excess of $10,000, see U.S.S.G Secs. 2C1.1(b)(2)(A), 2F1.1(b)(1)(D); added four more levels because of appellant's role in the offense, see U.S.S.G. Sec. 3B1.1(a); and subtracted three levels for acceptance of responsibility, see U.S.S.G. Sec. 3E1.1. The district court then calculated the guideline sentencing range at 21-27 months (offense level 16/criminal history category I); imposed a 27-month incarcerative sentence (accompanied by a three-year term of supervised release and a $500 special assessment); and dismissed the other twelve counts contained in the indictment. This appeal followed.

II. ANALYSIS

On appeal, Tejada assigns error in two respects. ⁴ We address his claims seriatim.

A. Relevant Conduct.

Appellant strives to persuade us that the record in this case will not support a finding, by a fair preponderance of the evidence, that the offense of conviction involved bribes totalling more than $10,000. Since this exhortation challenges the sentencing court's findings of fact, our review is for clear error. See United States v. St. Cyr, 977 F.2d 698, 701 (1st Cir.1992). We discern none.

With respect to offenses involving bribery of public officials, the sentencing guidelines use the amount of the bribe offered or given as an important indicium in fixing the defendant's offense level and, hence, the ultimate sentencing range. See U.S.S.G. Secs. 2C1.1(b)(2)(A); 2F1.1(b)(1). The aggregate amount of the covered bribes is to be derived from the sum total of all relevant conduct--a datum that can be arrived at only after consideration of all acts "that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. Sec. 1B1.3(a)(2); see generally United States v. Sklar, 920 F.2d 107, 110 (1st Cir.1990); United States v. Blanco, 888 F.2d 907, 910 (1st Cir.1989). Assembling this compendium requires the sentencing court to consider both consummated and unconsummated bribes. The failure to consummate a bribe neither detracts from the donor's culpability nor renders the amount involved ineligible for use in setting the donor's offense level; the guidelines treat solicitations and attempts as equivalent to completed offenses. See U.S.S.G. Sec. 2C1.1(b)(2)(A), comment. (backg'd).

At the disposition hearing, the lower court relied heavily on the PSI Report. It concluded that appellant had offered or given no fewer than twelve bribes, each in the amount of $1,000. At bottom, this conclusion is the product of simple multiplication: the price per alien times the number of aliens smuggled.

As to the first integer, the court could plausibly have found the price to be $1,000, per head. After all, the record indicates that appellant offered to pay the apprentice $1,000 apiece for the first two aliens admitted, and that he had an ongoing agreement with the undercover agent to pay the same price. These facts adequately ground an inference that appellant offered or gave a $1,000 bribe for each client whom he endeavored to smuggle into the United States.

By like token, the court could plausibly have found that no fewer than twelve aliens were involved. The court identified the aliens it had in mind by reference...