U.S. v. Valdez-Gonzalez
| Decision Date | 19 February 1992 |
| Docket Number | Nos. 89-10274,89-10330,V,VALDEZ-GONZALE,s. 89-10274 |
| Citation | 957 F.2d 643 |
| Parties | , 5 Fed.Sent.R. 324 UNITED STATES of America, Plaintiff-Appellant, v. Luis Armandoictor Arguelles-Rodriguez, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Bert Vargas, Asst. U.S. Atty., Tucson, Ariz., for plaintiff-appellant.
Jacqueline Marshall, Ralls, Bruner, Valenzuela & Marshall, P.C., Edward H. Laber, Tucson, Ariz., for defendants-appellees.
Appeal from the United States District Court for the District of Arizona.
Before TANG, NORRIS and FERNANDEZ, Circuit Judges.
The government appeals the Arizona district court's downward departures from the Sentencing Guidelines in sentencing two Mexican citizens for possession with intent to distribute marijuana. At sentencing, the district court held that the relative blamelessness of drug "mules" like the defendants was a mitigating factor either not adequately taken into account by the Guidelines or was present to a degree substantially in excess of that which ordinarily is involved in the offense. The district court then departed downward from the applicable Guidelines range. We affirm.
Luis Armando Valdez-Gonzalez ("Valdez") is a Mexican citizen from Sonora, Mexico. He earned a living for his wife and four children selling clothes in Sonora from the back of a truck. In November 1988, a Mexican known to Valdez only as "Ruben" promised him $2,000 to pick up and drive a car with an unknown amount of marijuana in it from Douglas to Tucson, Arizona. Valdez accepted the offer. On November 24, 1988, the United States Border Patrol arrested Valdez in Benson, Arizona with the car and marijuana. Valdez had no prior criminal record in either Mexico or the United States.
Valdez pleaded guilty to the charge on which he was indicted, possession with intent to distribute more than fifty but less than 100 kilograms of marijuana, in violation of 21 U.S.C. § 841. The plea agreement stipulated to a reduction of the base offense level under the Guidelines for Valdez's "minimal participation" in the offense, resulting in a maximum sentence of twenty-seven months. Rejecting the supposition that Valdez was a "minimal participant," the preparer of the Presentence Report recommended a Guidelines sentencing range of forty-one to fifty-one months.
At sentencing, the district court adopted the recommended Guidelines sentencing range of 41 to 51 months, but departed downward, sentencing Valdez to eight months in prison and three years of supervised release. The sentencing court explained its reasons for downward departure from the Guidelines sentence as follows:
THE COURT: Well, I have some mixed emotions about Mr. Valdez' sentence. I just had a couple of sentencings before him this morning where, due to the circumstances, I accepted a plea agreement that provided one for probation, and the other I am considering house arrest. So when you compare all these cases, I have a hard time rationalizing a lengthy term of incarceration for Mr. Valdez.
* * * * * *
If I depart, and I have given reasons, I have stated what happened here in two other sentencings this morning. I am trying to have the sentencings be as fair as possible in an over all picture, trying to be fair with every defendant, and I can't see sentencing this man to a longer term than eight months in view of the other sentences that I imposed this morning that were plea agreements, and your office [the United States Attorney's office] was part of those.
I am not criticizing them, but if we are going to do one thing, let's do it for everybody, or let's stay within a range that is fair. You can't put everything in a computer and come out with the proper sentence. You have to consider each case individually. But in all these cases, we file a statement of reasons for the sentence that we are imposing, and one of the reasons that I am departing in this case is that obviously, the [Sentencing] commission had no way of considering the conditions along the Mexican border where these people are starving to death, and being offered all kinds of money to drive a car across the border, or take it somewhere. He might have five pounds of marijuana, or he might have something in a quantity that makes him susceptible to a mandatory sentence. And I am pleased to see that the U.S. Attorney's Office is not going along with the amount.
For example, these ["]mules["] where each one is packing 40 pounds, and you have 10 ["]mules["]. It is totally unfair to impose mandatory sentences on those people. And I think that is enough reasons, and if the Ninth Circuit wants to say that is not enough valid reasons, you know, you [the United States Attorney] are entitled to appeal.
The government timely appealed the downward departure for Valdez.
Victor Arguelles-Rodriguez ("Arguelles") is also a Mexican citizen from Sonora, Mexico. He lived with his girlfriend's family in Sonora and worked as a temporary manual laborer and field hand. While seeking work in the United States, Arguelles and his friend and codefendant, another Mexican citizen, were approached by an unknown person promising them $1,000 apiece to drive a car with marijuana in it from Sasabe to Phoenix, Arizona. On January 16, 1989, Border Patrol agents stopped and apprehended Arguelles and his codefendant with the car loaded with marijuana.
Arguelles pleaded guilty to the charge on which he was indicted, possession with intent to distribute 190 pounds of marijuana, in violation of 21 U.S.C. § 841. Arguelles had no previous criminal record. The plea agreement stipulated to a Guideline sentencing range of thirty-three to forty-one months. The preparer of the Presentence Report calculated the Guideline range at forty-one to fifty-one months imprisonment.
At sentencing, 1989, the district court--the same court that had sentenced Valdez--again adopted the recommended Guidelines range and departed downward, sentencing Arguelles to fifteen months in prison and three years of supervised release. The district court explained its reasons for the downward departure as follows:
THE COURT: Let me tell you, and you can take this message back to your office [the United States Attorney's office]: I sit here and I sentence people--I think I have 10 for next week; I sentence four or five a day; it is just a horrendous problem. I don't disagree that it is a problem, and one of the problems that I see. I think it is my job to see that justice is meted out fairly, and that's what the guidelines are trying to do--supposedly trying to do. And there seems to be a lack of coordination in your office on how these cases are handled.
I sentenced five men the other day in a gigantic conspiracy. I mean these guys were out here unloading marijuana from planes. And two of the plea agreements provided for probation. And you want these 18, 21-year old guys to get 27 months when your office comes in here and makes deals suggesting probation or three years for guys who are involved in giant conspiracies involving millions of dollars.
Maybe your office doesn't see it, because you each handle different cases, and have different philosophies, but I see it every day. And as long as I have anything to say about it, justice is going to be handed out on an even basis. I don't care if they are from Mexico, Canada, or the United States. We are going to handle it the way I see, and the way I think is right and fair.
The district court's reasons for downward departure in sentencing Arguelles parallel its reasons for downward departure in sentencing Valdez. The government also timely appealed the downward departure for Arguelles, and it argues the cases together.
Both Valdez and Arguelles have served completely the sentences imposed by the district court and have since been deported to Mexico. No one knows the defendants' whereabouts. Although their sentences include supervised release, Valdez and Arguelles are under no obligation to report to a probation officer since they are not in this country. Should either Valdez or Arguelles be rearrested in the United States, their supervised release time would be converted to incarceration time. Because the contingency of Valdez' and Arguelles' reentry and rearrest is speculative, counsel for Valdez and Arguelles argue that the appeal is moot.
The Supreme Court's decision in United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2, 103 S.Ct. 2573, 2575 n. 2, 77 L.Ed.2d 22 (1983), however, instructs us to proceed to the merits. In Villamonte, a district court convicted two foreign nationals on drug smuggling charges. The court of appeals reversed the convictions, holding that the evidence was seized in violation of the defendants' fourth amendment rights. The government appealed the reversal. The defendants argued to the Supreme Court that, because the defendants had long since been deported, the appeal was moot. The Supreme Court disagreed:
That respondents have been deported likewise does not remove the controversy involved. Following a reversal of the Court of Appeals, there would be a possibility that respondents could be extradited and imprisoned for their crimes, or if respondents manage to re-enter this country on their own they would be subject to arrest and imprisonment for these convictions.
Id. The Supreme Court thus seems willing to let speculative contingencies prevent the mootness of a government criminal appeal. Because, as in Villamonte, the government could seek the extradition of Valdez and Arguelles or because Valdez and Arguelles could face further proceedings in this case upon reentering the country, the appeal is not moot. 1
Under this court's recent en banc decision in United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc), departures from the...
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