United States v. Fuentes Vazquez

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-1760

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                JOSUE FUENTES-VAZQUEZ,

                                Defendant, Appellant.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

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

                                 ____________________

            Gabriel Hernandez Rivera for appellant.
            ________________________
            Antonio  R. Bazan,  Assistant United  States Attorney,  with  whom
            _________________
        Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior
        _____________                          _______________________
        Litigation  Counsel,  Joseph J.  Frattallone, Assistant  United States
                              ______________________
        Attorney, were on brief for appellee.

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                                    April 28, 1995
                                 ____________________



COFFIN,  Senior  Circuit  Judge.   Appellant  Josue  Fuentes
                        ______________________

          Vazquez claims that the district  court erred in departing upward

          from  the  guidelines  when  it  sentenced  him  for  carjacking.

          Finding the  departure  both legally  permissible  and  factually

          supportable, we affirm.

                                I. Factual Background
                                   __________________

               Some basic facts are not  in dispute.  On February  1, 1994,

          Fuentes  and an accomplice attempted an ill-fated carjacking in a

          heavily  congested commercial  section of  Isla Verde,  Carolina,

          Puerto Rico.  The targeted victim, Anselmo B. Marquez, turned out

          to be an FBI  Agent.  Fuentes pointed a semi-automatic  pistol at

          Marquez as the agent  disembarked from his car, and  demanded and

          received his keys and  wallet.  A few moments later, Marquez drew

          his  official  pistol  from his  waist  bag  and  fired twice  at

          Fuentes, wounding him.

                 Fuentes' accomplice, waiting in the car  in which the pair

          had  arrived at  the scene,  backed up  toward Fuentes.   Fuentes

          threw his  gun into the car  and attempted to get  in through the

          passenger side window.   He could not.  The  accomplice then left

          at  high speed,  initially  dragging Fuentes  alongside the  car.

          After  he fell to the  pavement, Fuentes was  detained by Marquez

          until local police officers arrived and took him to a hospital.

               The circumstances  surrounding the  shooting by  Marquez are

          disputed.  Fuentes maintains that, after obtaining Marquez's keys

          and wallet,  he sensed  that Marquez's behavior  suggested police

          training, and so he decided  to abort the robbery.  He  claims to

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have been shot in the back while running toward the get-away car.

          Marquez  contends that he fired  his weapon at  Fuentes while the

          defendant was  leaning toward him  in a half-crouch  and pointing

          his gun at the agent.  The government claims the shot hit Fuentes

          in the chest.

               Each version  has some documentary support.   The government

          points  to  a doctor's  report  from Puerto  Rico  Medical Center

          describing  Fuentes' injury as  "GSW [Gun Shot  Wound] to chest."

          Another  report from  the hospital,  however, includes  a diagram

          explicitly  labeling a spot on  Fuentes' back as  the "orefice of

          entrance" and a  similar spot  on his  chest as  the "orefice  of

          exit."   His "Discharge Summary"  also states that  he received a

          gunshot wound to his back. 

               Fuentes pled guilty to a single count of carjacking under 18

          U.S.C.     2119.    In  his  presentence  report,  the  probation

          department  recommended against  an  adjustment  in sentence  for

          acceptance of responsibility in part because Fuentes had provided

          conflicting  versions of  the events  of the  crime.   The report

          noted that  he was  claiming to  be the  sole participant  in the

          carjacking and that he had been shot in the back by Marquez.

               In a separate section addressing factors that may  warrant a

          departure from the applicable  guidelines range, the report noted

          that  the court could  consider an  upward departure  because the

          offense  conduct  involved potential  risk  of  harm to  innocent

          bystanders.  The report continued:

               The potential  exchange of gunfire, the  shots fired by
               the special agent in self-defense, and the acceleration

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of the getaway car in a normally highly congested  area
               could  have had  serious  consequences.   Although  the
               guideline  for the  offense  of conviction,  in and  of
               itself,  has considered varying harms to the carjacking
               victim, the  guideline provisions do not  cover harm or
               potential injury to others  in the course of committing
               the offense.

               In his response to  the presentence report, Fuentes objected

          only to the acceptance of responsibility conclusion.  His counsel

          explained  in  the  response that  there  apparently  had been  a

          misunderstanding concerning Fuentes' statements to  the probation

          officer   regarding   an   accomplice:   Fuentes   actually   had

          acknowledged that  another person  was involved but  claimed that

          that  individual  remained  in   the  car  during  the  attempted

          carjacking.   As for where  Fuentes was  shot, counsel  submitted

          copies  of the  medical records  previously described,  and noted

          that they "clearly indicated that he was shot in the back."

               At the  sentencing hearing,  Fuentes' attorney  reminded the

          court of the objection regarding acceptance of responsibility and

          urged  the court to find that Fuentes had demonstrated "a genuine

          personal  responsibility  for  his  actions"  based  on  a  sworn

          statement  that he  had submitted recounting  his version  of the

          crime and on statements made to the probation officer.

               The  court  seemingly   accepted  the  attorney's  entreaty,

          responding with the following comment:

               All  right, in essence  that is  a modification  to the
               information contained in  the pre-sentence report,  but
               aside  from   that,  any   other  changes  as   to  the
               information contained in the pre-sentence report?

          The attorney expressed no further concerns, and the court went on

          to impose sentence.  Beginning with  a base offense level of  20,

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see    2B3.1(a),  the court  added five  levels for  the specific
          ___

          offense characteristic of brandishing a firearm and then deducted

          three  levels for  acceptance of  responsibility.   The resulting

          base  offense level, 22, produced  a guideline range  of 41 to 51

          months.   The  court then  turned to  consideration of  an upward

          departure   and,  essentially   adopting  the  language   of  the

          presentence report,1 added a  two-level departure to increase the

          imprisonment range  to 51 to  63 months.   The court  imposed the

          maximum.  No objection was raised to the departure.

               On appeal,  Fuentes claims  that the departure  was improper

          both legally  and factually.  He asserts that the risk of harm to

          others is commonplace in the crime of armed carjacking, and it is

          therefore inappropriate to  add to the  guidelines range on  that

          basis.  Additionally, Fuentes argues that Agent Marquez fired his

          weapon without cause -- since he, the perpetrator, was retreating
                              
          ____________________

               1  The court stated it would consider a departure

                    on  the  basis   that  the  offense   conduct
                    involv[ing]   potential   risk  of   harm  to
                    innocent  by-standers  such  as  pedestrians,
                    patrons  or  drive-by motorist[s]  during the
                    commission  of  the   instant  offense,   the
                    potential  exchange of gun  fire, shots fired
                    by a  Special Agent  in self defense  and the
                    acceleration  of the  getaway  car within  an
                    area  known  for  its  high  concentration of
                    people,  could have  led  to  serious  bodily
                    injury  or  life threatening  consequences to
                    any individual.
                         The  Guideline  for  the   offens[e  of]
                    conviction  in and  by itself  has considered
                    harm to the car jacking victim, the Guideline
                    provisions  do  not cover  harm  or potential
                    injury to others in  the course of committing
                    the offense, thus the Court imposes a 2 level
                    departure enhancement . . . .

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from  the crime scene --  and Fuentes consequently  should not be

          blamed for the risk to bystanders from the shooting.

                                    II. Discussion
                                        __________

               We  begin  by  noting  the  limited  range  of  our  review.

          Sentencing challenges,  like other issues  arising from  criminal

          convictions,  may not  be raised  for the  first time  on appeal.

          United  States v.  Dietz, 950 F.2d  50, 55  (1st Cir.  1991).  An
          ______________     _____

          unpreserved claim will be  considered only in order to  prevent a

          "miscarriage of justice."  United States v. Agoro, 996 F.2d 1288,
                                     _____________    _____

          1291 (1st Cir. 1993).

               So far  as we can tell from the record, the claim brought by

          Fuentes on appeal was never presented to the district court.   As

          described  above, his response to  the presentence report and the

          colloquy  at  the  sentencing   hearing  focused  solely  on  his

          entitlement  to  the  three-level adjustment  for  acceptance  of

          responsibility.   Although  his appellate  argument on  departure

          implicates some  of  the same  facts  relevant to  acceptance  of

          responsibility -- most notably, the circumstances surrounding the

          shooting  --  the court's  attention  was never  directed  to the

          problems Fuentes now ascribes to its decision to depart.  Indeed,

          counsel may well have made a deliberate decision not to challenge

          the court's statement  that Agent Marquez  shot Fuentes in  self-

          defense  for  fear that  it would  raise  anew the  acceptance of

          responsibility issue.  Even  with the two-level upward departure,

          Fuentes  came  out  ahead  with  the  three-level  acceptance  of

          responsibility adjustment.

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In any event,  the departure is  supportable even under  the

          standard  applicable to  fully preserved  claims of  error.   Our

          typical  review  of  departure  decisions involves  a  three-step

          analysis:

               (1) whether  the reasons  the court gave  for departing
               are of the  sort that  might permit a  departure in  an
               appropriate case;  (2) whether  the  record supports  a
               finding of facts  demonstrating the  existence of  such
               reasons; and (3) whether, given the reasons, the degree
               of departure is reasonable.

          United States v. Mendez-Colon, 15 F.3d 188, 189 (1st Cir. 1994).
          _____________    ____________

               The  district court  felt that  a departure  was appropriate

          because  commission of  an armed  hijacking in a  busy commercial

          area created an  unusually high  risk of harm  to bystanders  and

          nearby motorists.   We agree that this is a permissible basis for

          departure.  The robbery guideline, which is the one applicable to

          carjackings,2  provides  for an  increase  in  sentence based  on

          actual  injury  only   to  the  victim  of  the  crime.    See   
                                          ______                     ___

          2B3.1(b)(3).    In  addition,   the  section  of  the  guidelines

          discussing appropriate grounds for  departure notes as an example

          that  "because the robbery guideline does not deal with injury to

          more  than one  victim, departure  would be warranted  if several

          persons  were  injured."   See    5K2.0  (Policy Statement).   No
                                     ___

          reference  is  made  to  possible  innocent  bystanders,  and  we

          therefore  think it clear that the guideline itself does not take

____________________

               2 This  guideline was  amended in 1993  explicitly to  cover
          carjackings.  See   2B3.1(b)(1)(B).
                        ___

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into  account  harm  to  individuals  other  than  the  victim or

          victims.

               We  also must consider whether creation of a risk to others,
                                              __________________

          rather than causing them actual harm, is sufficient to warrant an

          increased  sentence.   Fuentes  claims that  such  a risk  is  an

          ordinary feature  of an armed  carjacking, and that  its presence

          therefore  should  not trigger  a  departure  from the  carefully

          calibrated   guidelines   punishments.      This   contention  is

          contradicted, however,  both by the applicable  guideline's focus

          on the victim and  by commentary in the Sentencing  Guidelines on

          the relevance of the  risk created in a criminal encounter.   The

          Commentary  to    1B1.3  states that  when  a specific  guideline

          addresses only harm sustained,

               the risk  created enters into the  determination of the
               offense level  only insofar as it  is incorporated into
               the  base offense  level.   . .  . When  not adequately
               taken into account by the applicable offense guideline,
               creation  of a risk may provide a ground for imposing a
               sentence above the applicable guideline range.

            1B1.3, comment.  (n.5).  The robbery guideline  is cited as one

          that refers only to actual harm.

               Because we  have concluded that  the offense level  does not

          contemplate impact  on anyone other than  the targeted carjacking
                      ______

          victims, the risk created to bystanders necessarily was not taken
                       ____

          into  account in setting the  punishment.  We  think it therefore

          within the trial court's authority to depart from the  guidelines

          when the offense conduct creates a substantial risk to others, as

          when an armed carjacking is committed in a busy commercial area.

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Having  concluded  that  the  reasons  the  court  gave  for

          departing are "of the  sort that might permit  a departure in  an

          appropriate case,"  Mendez-Colon, 15 F.3d  at 189,  we next  must
                              ____________

          consider whether such circumstances  actually exist in this case.

          In  explaining the decision  to depart, the  district court noted

          the "potential exchange of  gun fire," the actual shots  fired by

          the special agent "in  self defense" and the acceleration  of the

          getaway car "within an  area known for its high  concentration of

          people."  Fuentes'  challenge centers on the  shooting: he claims

          that the danger to bystanders arose not from his conduct but from

          the agent's  unjustified shooting as he,  Fuentes, was retreating

          from the confrontation.

               As previously noted, a factual dispute exists concerning the

          circumstances  surrounding   the  shooting.    Although  a  court

          normally  should  make  factual  findings  on  contested  matters

          related to  sentencing, see Fed.  R. Crim.  P. 32 (C)(1),  we are
                                  ___

          untroubled  here by  the  court's omission  both because  Fuentes

          failed to  draw the issue to  its attention and  because the risk

          originated  with  Fuentes and  his  undisputed  brandishing of  a

          firearm.  On the question  of potential harm to others, it  is of

          little  moment whether Marquez was justified  in shooting when he

          did.   A  defendant  who  attempts  a  carjacking  in  a  heavily

          congested area while wielding  a firearm has created a  risk that

          innocent  persons will  be  harmed  by  a  precipitous  act  that

          triggers use of his or someone else's weapon.  This,  it seems to

          us, was the district court's primary concern.  Whether a shooting

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actually occurred, and how, are matters we think more relevant in

          reviewing the extent of the departure than in determining whether

          a departure is permissible at all.

               And,  as for the degree  of departure here,  we think it was

          eminently reasonable.  The court used as an analogy the guideline

          section  providing for an increase of two levels if the defendant

          recklessly created a substantial risk of  death or serious bodily

          injury  to another person  while in flight  from a crime.   See  
                                                                      ___

          3C1.2.   Assuming that the  court would have  imposed the maximum

          term  with  or  without  the  departure,  the  increase  from the

          departure was therefore 12 months.  We think this a judicious and

          supportable additional penalty.3

               One additional  aspect of  this case  makes its result  even

          more clearly correct.  Ironically, it appears  that the two-level

          increase  in base  offense level  achieved through  the departure

          actually  should  have been  imposed under  a requirement  of the

          guidelines overlooked by both the probation office and the court,

          and  never addressed  by the  parties.   In November  1993, three

          months before the incident at issue in this case,    2B3.1 -- the

          robbery guideline -- was amended to include specific reference to

          carjacking, a crime  that had been added  to the criminal  code a

          year  earlier.  See generally United States v. Singleton, 16 F.3d
                          ___ _________ _____________    _________

          1419, 1424-25 (5th  Cir. 1994).  Subsection (b)  of   2B3.1 lists

          "specific offense characteristics" that trigger  increases to the
                              
          ____________________

               3 Indeed, part of the court's rationale for the departure --
          the risk  created  by the  high-speed  flight --  falls  directly
          within   3C1.2.

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base offense level of 20.  The section as amended  in 1993 states

          that  if  the offense  at  issue  involved carjacking,  the  base

          offense   level  should   be   increased  by   two  levels.      

          2B3.1(b)(1)(B).   By  departing upward,  therefore, the  district

          court simply achieved what should  have been the proper  baseline

          sentencing range.

               For  the foregoing  reasons,  the judgment  of the  district
               ____________________________________________________________

          court is affirmed. 
          _________________

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