USCA1 Opinion

November 6, 1992

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
_____________________

No. 92-1359
No. 92-1359
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
ANTONIO TRINIDAD-LOPEZ,
ANTONIO TRINIDAD-LOPEZ,
Defendant, Appellant.
Defendant, Appellant.
____________________
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fust , U.S. District Judge]
[Hon. Jose Antonio Fust , U.S. District Judge]
___________________
____________________
____________________
Before
Before

Breyer, Chief Judge,

Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
Coffin, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
_____________
____________________
____________________

Miguel A.A. Nogueras-Castro, Assistant Federal Public Defend

Miguel A.A. Nogueras-Castro, Assistant Federal Public Defend
____________________________
with whom Benicio Sanchez Rivera, Federal Public Defender, was
with whom Benicio Sanchez Rivera, Federal Public Defender, was
_______________________
brief for appellant.
brief for appellant.
Jos
A. Quiles Espinosa, Senior Litigation Counsel, with w
Jos
A. Quiles Espinosa, Senior Litigation Counsel, with w
_________________________
Daniel F. Lopez Romo, United States Attorney, and Hernan R os, J
Daniel F. Lopez Romo, United States Attorney, and Hernan R os, J
_____________________
______________
Assistant United States Attorney, were on brief for appellee.
Assistant United States Attorney, were on brief for appellee.
____________________
____________________
____________________
____________________

CYR,
CYR,

Circuit Judge.
Circuit Judge.
_____________

pled guilty to one

with

attempting

violation

of

twenty-four
release.

Appellant Antonio Trinidad-Lopez

count of a two-count indictment

to bring

8 U.S.C.
months

aliens

1324(a)(1)(A)1

in

prison

and three

Appellant challenges

of the sentencing guidelines

the court erred

into

States

in

was sentenced

to

years

on

supervised

application

in two particulars, contending that

in denying a

the applicable

and

United

the district court's

three level reduction in

offense level pursuant to U.S.S.G.

above

the

charging him

guideline

the base

2L1.1(b)(1) and in departing

sentencing range

("GSR").

We

affirm.
I
I
BACKGROUND
BACKGROUND
__________
On October 27,

1991, the

United States

Border Patrol

____________________
1Section 1324(a)(1)(A) provides:
(1)

Any person who

(A) knowing that
brings to or attempts
States in any manner

a person is an alien,
to bring to the United
whatsoever such person

at a place other than a designated port of

entry . . ., regardless of whether such alien
has received prior official authorization to
come to, enter, or reside in the United
States and regardless of any future official
action which may be taken with respect to
such alien, . . . shall be fined . . . or
imprisoned not more than five years, or both,
for each alien in respect to whom
any
violation of this paragraph occurs.
8 U.S.C.

1324(a)(1)(A).

intercepted a wooden yawl off the coast of Rinc n, Puerto Rico, a

place
United

other than a designated port of

States.

On

board the

Dominican Republic.
five

feet

in

The

length,

entry for aliens into the

vessel were

yawl, which was

contained

no

104 aliens

from the

approximately thirtyfood,

life

jackets,

navigational equipment, or charts; it fell apart shortly after it

was intercepted.

Appellant was arrested

master

of

the vessel.

guilty

to count one of

Ultimately,

he

and identified as
was indicted

the indictment; count

the

and pled

two was dismissed

pursuant to a plea agreement.

At sentencing, appellant objected to two

statements of

fact contained in the presentence report ("PSR"):

captain

for

the "Lolo"

hundreds or thousands

organization

of illegal

and that

that he was
he

aliens to Puerto

had brought
Rico in

the

past.2

Service

special agent
("INS")

investigation

of

of the Immigration

testified

that,

alien smuggling,

organization chart of the

as
the

and Naturalization

part
INS

of

an

ongoing

was developing

Lolo organization based on information

obtained from its informants and members of the organization

had

been arrested.

who

The INS agent identified appellant, known by

the nickname "Cubian," as one of

the main boat captains for

Lolo

to the

organization.

an

According

receives payment directly from

agent,

Lolo

the

typically

the aliens; the organization pays

____________________

2According to
the
testimony of
an Immigration
and
Naturalization Service agent, the "Lolo Smuggling Organization,"
also known as the "Nunez Smuggling Organization," conducts one of
the largest alien smuggling operations in the Dominican Republic.
4

the captains for each

had been

trip.

arrested earlier in

The agent testified

the year for

transporting ninety-

three illegal Dominican aliens to the island of

Rico, but was

never indicted

that appellant

because none of

Desecheo, Puerto
the aliens

would

testify against him.

The

district court

based appellant's sentence

testimony of the INS agent and the information in the PSR.

on the

Under

U.S.S.G.

2L1.1(a)(2),

transporting,

or

1324(a)(1)(A),
PSR

recommended a

2L1.1(b)(1)

offenses

harboring

illegal

involving
aliens,

"money was

three

level reduction

because the

three level
involved in

the master of the

for free."

probation

officer found

with

Thus,

U.S.S.G.

no evidence

The court declined to

instead that

smuggling boat, the [appellant], did

not work

increased the base

execution.

reduction for acceptance of

3E1.1(a).

The

and that

The court

to its

U.S.C.

this alien-smuggling operation

offense level

by two

3B1.3 because appellant, as captain

vessel, brought to the illegal

necessary

pursuant to

reduction, however, finding

levels pursuant to U.S.S.G.

of the

see
___

are assigned a base offense level of nine.

that the offense was committed for profit.

allow the

smuggling,

The

enterprise special skills

court

granted a

responsibility pursuant to

an adjusted offense

level of nine,

two

level

U.S.S.G.

combined

a category I criminal history, yielded a 4-to-10 month GSR.

The court

further determined, however, that

was warranted

and sentenced

an upward departure

appellant to twenty-four

months in

prison, three years of supervised release, and a special monetary

5

assessment of $50.

II
II
DISCUSSION
DISCUSSION
__________
A.
A.

U.S.S.G.
2L1.1(b)(1)
U.S.S.G.
2L1.1(b)(1)
______________________
Appellant

argues

that

the district

court

erred

in

denying 2a downward adjustment in the base offense level pursuant

to U.S.S.G.
levels

2L1.1(b)(1), which provides for a decrease of three

if the

defendant smuggled,

unlawful

alien

explains

that

other than
_____ ____
"'[f]or

for
___

profit'

transported, or

profit.
______
means

harbored an

Application
for

financial

Note
gain

or

commercial advantage,

but . . . does not include a defendant who

commits

solely in

the

offense

transportation."
three

return

Appellant argues

level reduction because he

for

his

that he is

own entry

entitled to

did not charge

or

the

the aliens for

the trip and there was no evidence that he was paid by the "Lolo"

organization; that, on the contrary, he piloted the vessel solely

in

return

for his

own transportation,

and

that of

his wife.

Appellant

contends

that

the

allegations by an "unreliable

court

improperly

relied

on

confidential informant" in finding

that the Lolo organization paid him for the journey.

The trial court's application of
lines to the facts
v. Camuti,
______

the sentencing guide-

is reviewed for "clear error,"

950 F.2d 72,

74 (1st

Cir. 1991);

United States
_____________

United States
_____________

v.

Preakos, 907
_______

F.2d 7, 8 (1st Cir. 1990); United States v. Wright,

_____________
______

873 F.2d 437

(1st Cir. 1989), which entails due

trial court's

superior opportunity

the witnesses, as well as "due

respect for the

to judge the

credibility of

deference to [its] application of

7

the guidelines to the facts."

18 U.S.C.

The validity of any claim

3742(e).

of entitlement to a downward

adjustment

in the base offense level must be demonstrated by the

defendant,

United States v. Ortiz,

_____________
_____

1992);

United States
_____________

v. Bradley,
_______

1990);

United States v.
______________

966 F.2d 707,

917 F.2d

Ocasio, 914
______

F.2d

717 (1st Cir.

601, 606

(1st Cir.

330, 332

(1st Cir.

1990), by

a preponderance of the evidence.

Corcimiglia,
___________
David,
_____

940

evidence

967 F.2d 724, 726 (1st Cir. 1992); United States v.

_____________
F.2d 722,

standard

sentencing),

739

(1st

applicable

cert.
____

denied, 112 S.
______

Cir. 1991)

to

denied, 112
______

issues of
S.

Ct.

(preponderance

of

fact

to

not required

to

defendant's

and

cert.
____

112 S. Ct. 1298

112 S. Ct. 2301 (1992).

establish

relating

605 (1991)

Ct. 908 (1992) and cert. denied,

____ ______

(1992) and cert. denied,

____ ______
is

Cf. United States v.

___ _____________

The government

disentitlement,

as

appellant assumes.
Appellant

offered no

downward adjustment.

In fact,

court that he accepted

admitted to
money."

three such

Moreover,

tablished practice
directly from the
each

trip.

evidence

that

in his attempt

would support
to convince

the

responsibility for the offense, appellant

trips and

the INS agent

of the

stated, "I

testified that it

Lolo organization to

alien passengers

have done

and to pay

it for

is the

es-

collect payment
the captain

for

According to the agent, an ongoing INS investigation

revealed that the appellant

was one of the main captains for the

Lolo organization and that

he had been apprehended

under very similar illegal

circumstances on an earlier occasion.

8

and arrested

We

cannot conclude

that

the

court

committed clear

error

in

crediting competent testimony from official investigative sources

concerning Lolo

organization practice, as to

was

at

asserted

sentencing

countervailing evidence.

and

which no objection

appellant

Since appellant did

produced

no

not establish the

grounds for a downward adjustment, the refusal to allow the three

level

reduction

pursuant

to

U.S.S.G.

2L1.1(b)(1)

did

not

constitute error.
2.
2.

Upward Departure
Upward Departure
________________

Appellant next challenges the upward departure from the

GSR, which
in

we review under the

tripartite framework established

United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir.

_____________
______________

1989),

cert. denied,
____ ______

493 U.S.

862 (1989).

See,
___

e.g., United
____ ______

States v. Figaro, 935 F.2d 4, 7 (1st Cir. 1991); United States v.

______
______
_____________

Reyes, 927 F.2d 48, 51 (1st Cir. 1991); United States v. Trinidad
_____
_____________
________
de la Rosa, 916 F.2d 27, 29-30 (1st Cir. 1990).
__________
a.
a.

Step One: Unusual Circumstances

Step One: Unusual Circumstances
________________________________

First,
circumstances

the

were

determination

unusual enough

subject to de novo review.

__ ____
also
____

Figaro,
______

935

sentencing court
large

number

journey,"

F.2d

and

the

to

the

warrant

relevant

a departure

Diaz-Villafane, 874 F.2d at

______________
at

based its

of aliens

that

6; Reyes,
_____

927

departure on

involved,"

finding

that

F.2d

three

"the

at

49.

is

See
___

52.

The

factors:

"the

dangerousness of

the

appellant's

criminal history

the magnitude of his

criminal conduct

category underrepresented
in light of

a prior

note 8 to U.S.S.G.

arrest for similar

2L1.1 plainly states that

has not considered

"[t]his
step

in those

directive

one of

the

Application

"[t]he Commission

offenses involving large numbers of aliens or

__

dangerous or inhumane treatment.

__
considered

conduct.3

An upward departure should

circumstances."

(Emphasis added.)

effectively forecloses
Diaz-Villafane analysis"
______________

____________________

further
once the

be

Thus,

inquiry into

sentencing

3Appellant also argues that the district court improperly

relied on "compounding social economic problems in the Dominican
Republic." Although the sentencing judge alluded to social and
economic problems in the Dominican Republic, we do not share
appellant's view that the challenged departure was made to depend
on these observations, which were carefully distinguished from
the
illegality and
dangerousness of
appellant's conduct.
Although the court acknowledged the plight of illegal aliens
desiring to enter the United States, the court emphasized that
this did not mitigate the seriousness of appellant's offense. As
the court stated in its Opinion and Order:
While we can sympathize with the plight of those who
might wish to enter our boundaries to seek a better
life, we do not find the same kind of compassion for
those who participate in the exploitation of others and
who,
for
profit, transport
these
aliens under
conditions that in the end create the real possibility
of loss of life, not to say the creation of other
social problems inherent to this kind of operation.

Moreover, the court did not rely on socio-economic conditions in

the Dominican Republic in recording its findings and conclusions
on the upward departure:
Specifically, we find that the departure is warranted
based on the actual commission of the offense that led
to the present indictment, based upon both the large
number of aliens involved and the dangerousness of the
voyage.
Moreover, [appellant's] prior May 15, 1991
arrest after he landed 93 aliens in Desecheo Island,
convinces us that his criminal history category of I
underrepresents the magnitude of
this defendant's
criminal actions,
another
factor that
must
be
considered by this court in setting the sentence.
10

court invokes any listed circumstance as a ground for

Reyes,

departure.

927 F.2d at 52; see also Trinidad de la Rosa, 916 F.2d at

_____

___ ____ ___________________

30.

Therefore, the first two grounds identified by the district

court must

be accepted

as sufficiently

unusual to warrant

its

consideration of a departure.
Although
relied

on

by

the

appellant

contends

sentencing

court,

that

the

the

prior

third

ground

arrest,

was

improper, the sentencing guidelines provide otherwise.

If reliable information indicates that the
criminal history category does not adequately
reflect the seriousness of the defendant's
. . . past criminal conduct . . ., the court
may consider imposing a sentence departing
from
the otherwise
applicable guideline
range.
Such information may include . . .
information concerning . . . prior similar
_____ _______
adult criminal conduct not resulting in a
_____ ________ _______ ___ _________ __ _
criminal conviction.
________ __________
U.S.S.G.

4A1.3, p.s. (emphasis

expressly permits
where the
the

added).

the sentencing

Thus, U.S.S.G.

court to consider

criminal history category does

seriousness of

the defendant's

shown by "reliable information,"

4A1.3

a departure

not adequately reflect

prior criminal

history, as

including similar adult conduct

which did not result in a conviction.

b.
b.

Step 2: Factual Undergirding

Step 2: Factual Undergirding
_____________________________

Under the second

we review
challenged

step in the

for clear error all

departure.

Figaro,

Diaz-Villafane analysis,
______________

findings of fact material

935

F.2d

at

6.

See

to the

Diaz-

______
Villafane, 874 F.2d
_________

at 49.

___

The

evidence relating to

_____

the first

11

two

grounds for

number

the court,

the "large

of aliens" and the "dangerousness of the journey," is not

in dispute.

Thus, the

the Commission,
can

departure identified by

district court did exactly as invited by

see U.S.S.G.
___

2L1.1, comment. (n.8),

as there

be no question that the transportation of 104 aliens through

the Mona passage in a thirty-five foot yawl designed

more

than

fifteen

navigational
involving a

passengers,

equipment,
large number

or

without

charts,

of aliens

food,

to carry no

life

constitutes
and dangerous

jackets,

an

offense

and inhumane

treatment as contemplated by the guideline, see id.4

___ ___
The evidence
the third
not

ground for departure,

contested either.

arrested
aliens

appellant's prior arrest

on

May 15,

see U.S.S.G.
___

Appellant does
1991, after

on Desecheo Island, Puerto

not

landing
Rico.

supporting

4A1.3,
deny that

p.s., is
he

was

ninety-three illegal
Nor

does he challenge

the reliability of the information relating to the details of the

incident.

The same INS agent was the source of this information,

____________________

4We have held that 50 passengers are enough to satisfy the

"large number" requirement in application note 8, Trinidad de la
______________
Rosa, 916 F.2d at 30, and that the court may take judicial notice
____
that carrying 54 people in a 34-foot yawl creates a dangerous
condition. Id. at 30. See also United States v. Diaz-Bastardo,
___
___ ____ _____________
_____________
929 F.2d 798, 799 (1st Cir. 1991). The dangerousness inherent in
crowding twice
as
many
people into
such
a
yawl
is
incontrovertible, as appellant concedes.
Appellant nonetheless argues that he should not be held
accountable for any dangerousness, because the aliens were not
forced to make the journey and he had no control over, nor did he
contribute to, the dangerous conditions aboard the vessel.
Appellant does not deny that he was the master of the yawl,
however.
Thus, he is ill-positioned to argue that he is not
partially responsible for exposing the passengers to the dangers
of the Mona passage in such a vessel.
12

as he had been the officer in charge of the

tion
Coast

as well.

The agent verified

May, 1991 investiga-

appellant's arrest based on a

Guard report and testified that appellant was one of three

individuals apprehended by the

ninety-three

illegal

aliens

Coast Guard immediately after the

were

landed

on

Desecheo Island.

Although the record contains

no information about the conditions

aboard

the May,

the vessel

used for

1991 passage,

it clearly

involved the illegal smuggling

the

United

States.

Since

decision on reliable
appellant
conduct

did

the

court grounded

aliens into

its

departure

information sufficient to demonstrate

previously
that

of a large number of

had

not

engaged

result

in

in

evidentiary basis for its U.S.S.G.

similar

adult

that

criminal

criminal conviction,

the

4A1.3 departure decision was

sufficient.
c.
c.

Step 3: Reasonableness
Step 3: Reasonableness
_______________________

Under the

third prong

weigh whether the degree

of the Diaz-Villafane
______________

of the departure was reasonable

circumstances, according considerable

court

decision.

Diaz-Villafane, 874
______________

Figaro, 935 F.2d at 6.

______
the district court is
limit

was the

deference to the
F.2d at

in the

district

49-50; see
___

also
____

The twenty-four month sentence imposed by

more than twice that allowed at

of the 4-to-10 month GSR.

fortuity

test, we

the upper

We recognize, nonetheless, that

only impediment

to tragedy

for the

104 pas-

sengers who were traveling without life jackets in an egregiously

unsafe

and overburdened

wooden

boat through
13

the

treacherous

waters of the
faced with

Mona passage.

an underrepresentative

underrepresentative
criminal

Moreover, the

conduct in

criminal

offense level

history

connection with

category.
the offense

contributed to the endangerment of more than

months after having engaged
ninety-three passengers.

from

8-9 (upholding

0-6 month

GSR to

Appellant's

of conviction

departure, under

the degree of

See, e.g., id., 935

___ ____ ___

similar circumstances,

months); Reyes,
_____

927

F.2d at

(upholding departure from 8-14 month GSR to 36 months).

Affirmed.
________

as an
__

100 passengers only

In these circumstances,

18

as well
__ ____

was

in similar illegal conduct involving

departure cannot be considered unreasonable.

F.2d at

district court

52-53

14