United States v. Mendez-Colon, 1st Cir. (1994)
Uploaded by
Scribd Government DocsUnited States v. Mendez-Colon, 1st Cir. (1994)
Uploaded by
Scribd Government DocsUSCA1 Opinion
[FOR APPENDIX, CONTACT CLERK'S OFFICE]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-1346
UNITED STATES,
Appellee,
v.
JUNIOR MENDEZ-COLON,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Coffin, Senior Circuit Judge,
____________________
and Torruella, Circuit Judge.
_____________
____________________
Laura Maldonado Rodriguez, Assistant Federal Public Defend
___________________________
with whom Benicio Sanchez Rivera, Federal Public Defender, was
_______________________
brief for appellant.
Ernesto Hernandez-Milan, Assistant United States Attorney, w
________________________
whom Charles E. Fitzwilliam, United States Attorney, and Joseph
_______________________
______
Quiles-Espinosa, Senior
Litigation Counsel, were
on brief
_______________
appellee.
____________________
January 19, 1994
____________________
BREYER, Chief Judge.
____________
Coast Guard
aliens
intercepted a
to Puerto
recognized
one of
Rico.
those
On October
wooden yawl
A
taking 110
Border Patrol
aliens,
the
being
officer
defendant Junior
Colon, as a convicted alien smuggler whom the
had previously deported.
30, 1992,
the
illegal
later
Mendez
United States
Mendez subsequently pled guilty to
crime of unlawfully re-entering the United States after
deported for
conviction of
felony.
8 U.S.C.
1326(b)(1).
When
district
court
calculated a Sentencing
Guidelines offense level of
6 (the
"unlawful
offense
2L1.2(a),
sentencing
entry"
base
minus
two
responsibility," id.
___
Mendez,
level
levels
3E1.1(a)).
III,
the
of
for
8,
U.S.S.G.
"acceptance
It calculated
reflecting six
of
a Criminal
History
Category of
criminal history
points:
three points for the prior felony conviction, id.
___
4A1.1(a), plus three points for committing the present crime
while on supervised release and within
from an
earlier prison
calculations produced a
term, id.
___
4A1.1(d), (e).
These
Guideline Sentence range of
two to
eight months imprisonment.
Table).
The court
two years of release
then
Id. ch.
___
5, part A
(Sentencing
departed
from that
range,
imposed a prison term of 24 months.
and
Mendez appeals the 24-
month
sentence
on
the
ground
departure was "unreasonable."
agree with
that
the
18 U.S.C.
Mendez that, at least, the
explanation
provided.
for this
departure than
We vacate Mendez'
court's
upward
3742(e)(3).
law requires greater
the sentencing
sentence and remand
court
the case
for resentencing.
We have said that we normally review departures by
examining
(1)
whether
departing are of
an
appropriate
finding
of
departure
874
facts
(2) whether
demonstrating
the
court
the
the
49 (1st
gave
for
a departure in
record
existence
whether, given the reasons,
is reasonable.
F.2d 43,
reasons
the sort that might permit
case;
reasons; and (3)
the
supports a
of
such
the degree of
United States v. Diaz-Villafane,
_____________
______________
Cir.),
(1989); United States v. Rivera,
_____________
______
cert. denied,
____________
493 U.S.
994 F.2d 942, 950-52
862
(1st
Cir. 1993).
In this case, the district court departed from the
Guideline sentence for
a proper reason.
At
the sentencing
hearing, the court stated that
pursuant to information obtained from
the U.S. Immigration and Naturalization
Service . . . , the defendant is a wellknown alien
smuggler who
had been
arrested on previous occasions, although
not convicted, and these circumstances
-33
leads [sic] me to the conclusion that
the defendant's criminal history score
is under-represented, and therefore an
upward
adjustment
or
departure is
warranted pursuant to Guidelines 5K2.0
and 4A1.3, and I say specifically the
reason for the
upward departure is
because his criminal history score is
under-represented.
We have observed
that the Guidelines classify
some reasons
for departure as "encouraged," "discouraged," or "forbidden"
reasons,
Rivera, 994 F.2d
______
at 948-49, and
they "encourage"
departure when a defendant's Criminal History Category
does
not
adequately
reflect
the
seriousness of the
defendant's past
criminal conduct or the likelihood that
the defendant will commit other crimes.
U.S.S.G.
4A1.3 (p.s.).
"prior similar
adult conduct
conviction" may justify
Therefore,
the
"Reliable information" concerning
first
not resulting
such a departure.
part
of
in a
Id.
___
Diaz-Villafane's
______________
criminal
4A1.3(e).
test
is
satisfied.
As
to
the
second part,
sufficient basis
for the district
Criminal History
Category III
defendant's
actual
the
record
court's conclusion
was inadequate
criminal
provides a
history.
The
in light
that
of
Pre-Sentence
Report said,
According to information provided by
USINS Anti-Smuggling, S/A Joe Rivera,
defendant is a well known alien smuggler
-44
and is associated with one of the most
powerful alien smuggling organizations
in the Dominican Republic.
The United States Attorney
recommended an upward
departure
because, in her view, the defendant's criminal history score
took
account
actions.
of
only
one
of
several
earlier,
She told the court that his score did not
take[] into consideration . . .
those other occasions when he has .
been known to bring in aliens and
other occasions . . . for which he
all
. .
the
has
illegal
been deported.
The defendant did
he
deny
the
smuggling.
not controvert these statements,
existence
of
"other
Consequently, the
circumstances
erroneous.
warranting
See 18
___
occasions"
U.S.C.
of
district court's
departure
was
nor did
alien
finding of
not
clearly
3742(e); Diaz-Villafane,
______________
874
F.2d at 49.
Nonetheless, the extent of the departure creates a
problem.
Normally,
where an
offense
level
is
6, even
offenders with the highest criminal history scores (those in
Criminal
History Category VI)
than
months in
18
(Sentencing
prison.
cannot be sentenced
See
___
U.S.S.G. ch.
5,
Table) (attached here as an Appendix).
however, received a
because the same
24-month sentence.
to more
part A
Mendez,
The
problem arises
Guideline policy statement
that describes
-55
when the court
____
should depart because of a
Category's inadequacy, also
depart.
The
Guideline's
Criminal History
describes how the
___
policy
statement
court should
puts
direction in the following language:
In considering a departure under this
provision, the Commission intends that
the court use, as a reference, the
guideline range for a defendant with a
higher
or
lower
criminal
history
category, as applicable.
For example,
if
the
court concludes
that
the
defendant's criminal history category of
III significantly under-represents the
seriousness of the defendant's criminal
history, and that the seriousness of the
defendant's
criminal
history
most
closely
resembles
that
of
most
defendants
with
Criminal
History
Category IV, the court should look to
the guideline range specified for a
defendant with Criminal History Category
IV to
guide its
departure.
The
___
Commission contemplates that there may,
________________________________________
on occasion, be a case of an egregious,
________________________________________
serious criminal record in which even
________________________________________
the guideline range for Criminal History
________________________________________
Category VI is not adequate to reflect
________________________________________
the seriousness
of the
defendant's
________________________________________
criminal history.
In such a case, a
_________________
departure above the guideline range for
a
defendant
with
Criminal History
Category VI may be warranted. . . .
[Where that is so,] the court should
structure
departure
by
moving
incrementally down the sentencing table
to the next higher offense level in
Criminal History Category VI until it
finds a guideline range appropriate to
the case.
this
-66
Id.
___
4A1.3
(p.s.) (emphasis
statement says
across
that
the
the Sentencing
History Category
added).
court
Table,
to the next,
should
looking
highest
F.2d 64, 70 (1st
category, Category VI,
essence,
move
from
until it finds
that best suits the circumstances.
v. Aymelek, 926
_______
In
this
horizontally
one
Criminal
the Category
See, e.g., United States
___ ____ _____________
Cir. 1991).
If
even the
is not sufficiently severe,
then the court should move vertically from one offense level
to another,
until
it
finds
the
appropriate
punishment.
However, the court should depart beyond Category VI only "on
__
occasion,"
________
record."
in the case
U.S.S.G.
of an "egregious, serious criminal
____________________________
4A1.3 (p.s.) (emphasis added).
______
The upshot
follows
the
horizontally
is that
policy
across
insofar as
statement's
the
a district
methodology
Sentencing
by
Table, the
court
moving
statement
provides an "encouraged" departure, which an appellate court
will rarely set aside.
court "can
that
Rivera, 994 F.2d at 948 (sentencing
______
feel confident,
a departure would
the same
solely
because of
this encouragement,
not be 'unreasonable'").
policy statement "discourage[s]"
___
on
sentence,
criminal
criminal
history that
unless the
defendant's
history points already
exceed
However,
departures based
the
Category VI
record (beyond
what his
show) is "egregious."
We
-77
have
held
that a
court
Guideline "discouragement."
may
sometimes
Id. (where
___
depart despite
Guidelines provide
that
family
circumstances
departure, court
"ordinarily"
may depart
do
if unusual
Emery,
_____
991 F.2d
907,
913 (1st
warrant
circumstances make
the case "not at all 'ordinary'"); see, e.g.,
___ ____
v.
not
Cir.
United States
_____________
1993) (upholding
departure above Category VI for unusually egregious criminal
record).
However, when undertaking a discouraged departure,
the sentencing court must
carefully why
support the
departure
951
focus upon the issue
and explain
the circumstances, which ordinarily would not
departure, are
in the case
("Were a district
'discouraged'
reason
special enough
before it.
court . .
See
___
to warrant
the
Rivera, 994 F.2d at
______
. to try to
depart for a
without recognizing that it
must
_____________________________________
explain how the case (compared to other cases where the
____________________________________________________________
reason is present) is special, its departure
_______________________________
lawful."); Emery,
_____
"specific
991 F.2d at
reasons" why
913 (noting that
defendant's record
would not be
court gave
was worse
than
that of most Category VI offenders).
In
this
case,
although
the
sentencing
properly explained why it was departing, it did not
why a departure
created by moving horizontally
court
explain
to Criminal
History Category IV, V, or VI (with an 18-month maximum) was
-88
not
enough
Category's
to
remedy
inadequacy.
the
Guideline
It did
Criminal
not explain
History
why, in
that
respect, the case is special or "egregious."
In the absence of any such explanation, and in the
face of a
bad
record that is silent as to the specifics of past
behavior, Mendez's past would
seem to justify only the
horizontal sort of departure "encouraged"
court has not
provided any other basis for
United States
______________
(departure
by
v.
Figaro,
______
beyond Category
935
VI
F.2d
4A1.3.
The
departure.
(1st
Cir.
sentence justified
Cf.
___
1991)
because
defendant's present offense involved risk to life on ship of
_______________
which
he was
captain,
addition to the
allowing
4A1.3 departure).
the case for further consideration of
The parties
remain free to
5K2.0
departure
in
Consequently, we remand
defendant's sentence.
supplement the record at
a new
sentencing hearing.
The defendant's
sentence is vacated, and the case
__________________________________________________
is remanded for resentencing
in accordance with this
____________________________________________________________
opinion.
________
Note:
See Slip Opinion for copy of Appendix.
-99
