United States v. Francisco Martinez-Cano, United States of America v. Jorge Martinez-Castillo, United States of America v. Eduardo Arrendondo-Martinez

6 F.3d 1400, 93 Daily Journal DAR 12765, 93 Cal. Daily Op. Serv. 7504, 1993 U.S. App. LEXIS 25885
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 7, 1993
Docket93-50257, 93-50266 and 93-50268
StatusPublished
Cited by12 cases

This text of 6 F.3d 1400 (United States v. Francisco Martinez-Cano, United States of America v. Jorge Martinez-Castillo, United States of America v. Eduardo Arrendondo-Martinez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Francisco Martinez-Cano, United States of America v. Jorge Martinez-Castillo, United States of America v. Eduardo Arrendondo-Martinez, 6 F.3d 1400, 93 Daily Journal DAR 12765, 93 Cal. Daily Op. Serv. 7504, 1993 U.S. App. LEXIS 25885 (9th Cir. 1993).

Opinions

FERNANDEZ, Circuit Judge:

Francisco Martinez-Cano, Eduardo Arren-dondo-Martinez, and Jorge Martinez-Castillo pled guilty to conspiracy to produce false identification documents. 18 U.S.C. §§ 371 and 1028(a)(1). They were sentenced under the 1992 version of the Sentencing Guide1 lines. The district court increased the base offense level for each of them by six points, based in part upon the number of documents involved. They appealed. We vacate the sentence, and direct that the district court’s alternate determination of a proper sentence be entered as the judgment in this case.

BACKGROUND FACTS

Immigration and Naturalization Service agents executed a search warrant at appellants’ apartment and arrested them. The agents found 16 social security cards, six of which had names, 466 blank alien registration cards, and 58 blank temporary resident cards. All were counterfeit. The agents also found various pieces of equipment which are used to manufacture false identification documents. Appellants were indicted and pled guilty to conspiracy to produce false identification documents.

At sentencing it was agreed that the social security cards could be paired with the other documents. That, of course, made a total of 16 pairs. The probation officer was of the opinion that not only were the pairs sets of documents, but the number of individual documents should also be divided by two, which would dramatically increase the number of sets. The probation officer then opined that there were 270 sets. The government took the position that one document can be dubbed a set which would increase the number of sets still further. Appellants asked the district court to find a total of 16 sets and to determine the guideline sentence accordingly. It appears that the district court agreed with the appellants that only the pairs were sets. However, it determined that it would depart upward by four points because, as it said, the Commission had not adequately taken into account the fact that individuals may have a number of documents which do not constitute sets. It sentenced appellants accordingly and they appealed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

This court reviews the district court’s decision to depart from the Guidelines under a tripartite test established in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en bane); United States v. Cruz-Ventura, 979 F.2d 146, 148 (9th Cir.1992). “First, the district court’s determination that an ‘unusual circumstance’ not adequately considered by the Guidelines permits departure is subject to de novo review. Second, the district court’s factual findings supporting the existence of an identified circumstance permitting departure are reviewed for clear error. Finally, the extent of the departure is reviewed to determine, whether it is ‘reasonable’ in light of the standards and policies incorporated in the Sentencing Reform Act and the Guidelines.” Cruz-Ventura, 979 F.2d at 148 (citations omitted).

DISCUSSION-

The guideline for the offense in question appears rather straightforward on its face. It reads:

[1402]*1402Trafficking in Documents Relating to Naturalization, Citizenship, or Legal Resident Status; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assisi Alien to Evade Immigration Law
(a) Base Offense Level: 9
(b) Specific Offense Characteristics
(1) If the defendant committed the offense other than for profit, decrease by 3 levels.
(2) If the offense involved six or more sets of documents, increase as follows:
Number of Sets Increase of Documents in Level
(A) 6-24 add 2
(B) 25-99 - ' add 4
(C) 100 or more add 6.

U.S.S.G. § 2L2.1.

The government suggests that the guideline is not at all straightforward or clear and asks us' to uphold the district court’s decision on the basis that one document can be a set, or on the basis that the Sentencing Commission did not adequately consider the possibility of a defendant’s having a number of documents that did not make up sets. That determination would bring section 5K2.0 into play. We disagree on both points.

A. Guidelines § 2L2.1

As we have already said, section 2L2.1 seems clear on its face. It sets an initial base level of nine and then provides for an increase in that level by a certain number of points when certain numbers of sets of documents are involved. We can see no reason to read the word “sets” to mean “documents.” In fact, to do so would require us to abuse normal English usage. Who would éxpeet the Commission to say “Number of Sets of Documents” when it could accomplish the purpose the government argues for by simply leaving out the words “Sets of’? As Webster’s New International Dictionary says, a set is “a number of things of the same kind ordinarily used together,” or “a number of things naturally connected by location,” or “a group formed by classification.” Webster’s New International Dictionary (2d ed. 1958). The American Heritage Dictionary of thp English Language is to the same effect. It defines a set as “a group of things of the same kind that belong together and are so used_” American Heritage Dictionary (3d' ed. 1992). We are confident that the Commission used the word in just that way. We do recognize the government’s point that “one” is a number. We also recognize that in mathematics a set can consist of a single item, or of no item at all. Again, we see no reason for the Commission to resort to that kind of circumlocution if it desired to increase guideline scores based upon the number of single documents rather than upon the number of groups of documents. The government suggests that perhaps the Commission meant to key on the number of persons who could use the documents. In order to so hold we would have to decide that the Commission used a very roundabout way of accomplishing that goal.

Of course, we have also considered the possibility that the Application Notes would cast light on the Commission’s intent. Both we and the Supreme Court have declared that to be a proper and necessary procedure. See Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); United States v. Anderson, 942 F.2d 606 (9th Cir.1991) (en banc).

As we said in Anderson,

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6 F.3d 1400, 93 Daily Journal DAR 12765, 93 Cal. Daily Op. Serv. 7504, 1993 U.S. App. LEXIS 25885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-francisco-martinez-cano-united-states-of-america-v-jorge-ca9-1993.