United States v. Mendez-Colon

• Court: Court of Appeals for the First Circuit
• Decided: January 21, 1994
• Docket: 93-1346
• Status: Published

Opinion

USCA1 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  Defender,
            ___________________________
        with  whom Benicio  Sanchez Rivera,  Federal Public  Defender, was  on
                   _______________________
        brief for appellant.
            Ernesto  Hernandez-Milan, Assistant  United States  Attorney, with
            ________________________
        whom  Charles E.  Fitzwilliam, United  States Attorney, and  Joseph A.
              _______________________                                _________
        Quiles-Espinosa,  Senior   Litigation  Counsel,  were   on  brief  for
        _______________
        appellee.

                                 ____________________

                                   January 19, 1994

                                 ____________________

BREYER, Chief  Judge.   On October  30, 1992,  the
                               ____________

             Coast Guard  intercepted a  wooden yawl  taking 110  illegal

             aliens  to Puerto  Rico.    A  Border Patrol  officer  later

             recognized  one of  those  aliens,  defendant Junior  Mendez

             Colon, as a convicted alien smuggler whom the  United States

             had previously deported.  Mendez subsequently pled guilty to

             the  crime of unlawfully re-entering the United States after

             being  deported for  conviction of  a  felony.   8 U.S.C.   

             1326(b)(1).

                       When   sentencing  Mendez,   the  district   court

             calculated a Sentencing  Guidelines offense level of  6 (the

             "unlawful  entry"  base  offense  level  of  8,  U.S.S.G.   

             2L1.2(a),    minus   two    levels   for    "acceptance   of

             responsibility," id.   3E1.1(a)).  It calculated  a Criminal
                              ___

             History  Category of  III,  reflecting six  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  two years of release

             from an  earlier prison  term, id.    4A1.1(d), (e).   These
                                            ___

             calculations produced a  Guideline Sentence range of  two to

             eight months imprisonment.   Id. ch.  5, part A  (Sentencing
                                          ___

             Table).    The court  then  departed  from that  range,  and

             imposed a prison term of 24 months.   Mendez appeals the 24-

month  sentence  on  the  ground  that  the  court's  upward

             departure was "unreasonable."  18 U.S.C.   3742(e)(3).  W  e

             agree with  Mendez that, at least, the  law requires greater

             explanation  for this  departure than  the sentencing  court

             provided.   We vacate Mendez'  sentence and remand  the case

             for resentencing.

We have said that we normally review departures by

             examining  (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. Diaz-Villafane,
                                         _____________    ______________

             874  F.2d 43,  49 (1st  Cir.),  cert. denied,  493 U.S.  862
                                             ____________

             (1989); United States v. Rivera,  994 F.2d 942, 950-52  (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 well-
                       known  alien   smuggler  who   had  been
                       arrested on previous occasions, although
                       not convicted,  and these  circumstances

                                         -3-
                                          3

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.).  "Reliable information" concerning

             "prior similar  adult conduct  not resulting  in a  criminal

             conviction" may justify  such a departure.  Id.    4A1.3(e).
                                                         ___

             Therefore,  the  first  part  of  Diaz-Villafane's  test  is
                                               ______________

             satisfied.

                       As  to  the  second part,  the  record  provides a

             sufficient basis  for the district  court's conclusion  that

             Criminal History  Category III  was inadequate  in light  of

             defendant's  actual  criminal  history.    The  Pre-Sentence

             Report said,

                       According  to  information  provided  by
                       USINS  Anti-Smuggling,  S/A  Joe Rivera,
                       defendant is a well known alien smuggler

                                         -4-
                                          4

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  of  only  one  of  several  earlier,  illegal

             actions.  She told the court that his score did not 

                       take[]  into  consideration  . .  .  all
                       those  other occasions when he has . . .
                       been known  to bring in  aliens and  the
                       other occasions .  . . for which  he has
                       been deported.

             The defendant did  not controvert these statements,  nor did

             he   deny  the  existence  of  "other  occasions"  of  alien

             smuggling.   Consequently, the  district court's  finding of

             circumstances   warranting   departure   was   not   clearly

             erroneous.   See 18  U.S.C.    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)  cannot be sentenced  to more

             than  18  months in  prison.   See  U.S.S.G. ch.  5,  part A
                                            ___

             (Sentencing  Table) (attached here as an Appendix).  Mendez,

             however, received a  24-month sentence.  The  problem arises

             because the same  Guideline policy statement  that describes

-5-
                                          5

when the court  should depart because of a  Criminal History
             ____

             Category's inadequacy, also  describes how the  court should
                                                    ___

             depart.    The  Guideline's   policy  statement  puts   this

             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.

-6-
                                          6

Id.    4A1.3  (p.s.) (emphasis  added).   In  essence,  this
             ___

             statement says  that  the  court  should  move  horizontally

             across  the Sentencing  Table,  looking  from  one  Criminal

             History Category  to the next,  until it finds  the Category

             that best suits the circumstances.  See, e.g., United States
                                                 ___  ____  _____________

             v. Aymelek, 926  F.2d 64, 70 (1st  Cir. 1991).  If  even the
                _______

             highest  category, Category VI,  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,"  in the case  of an "egregious,  serious criminal
             ________                        ____________________________

             record."  U.S.S.G.   4A1.3 (p.s.) (emphasis added).
             ______

                       The upshot  is that  insofar as  a district  court

             follows  the   policy  statement's  methodology   by  moving

             horizontally  across  the  Sentencing  Table, the  statement

             provides an "encouraged" departure, which an appellate court

             will rarely set aside.   Rivera, 994 F.2d at 948 (sentencing
                                      ______

             court "can  feel confident,  because of  this encouragement,

             that  a departure would  not be 'unreasonable'").   However,

             the same  policy statement "discourage[s]"  departures based
                                         ___

             solely  on  criminal  history that  exceed  the  Category VI

             sentence,  unless the  defendant's  record (beyond  what his

             criminal  history points already  show) is "egregious."   We

-7-
                                          7

have  held  that a  court  may  sometimes  depart despite  a

             Guideline "discouragement."   Id. (where  Guidelines provide
                                           ___

             that  family  circumstances  "ordinarily"   do  not  warrant

             departure, court  may depart  if unusual  circumstances make

             the case "not at all 'ordinary'"); see, e.g.,  United States
                                                ___  ____   _____________

             v.  Emery,  991 F.2d  907,  913 (1st  Cir.  1993) (upholding
                 _____

             departure above Category VI for unusually egregious criminal

             record).  However, when undertaking a discouraged departure,

             the sentencing court must  focus upon the issue  and explain

             carefully why  the circumstances, which ordinarily would not

             support the  departure, are  special enough  to warrant  the

             departure  in the case  before it.  See  Rivera, 994 F.2d at
                                                 ___  ______

             951  ("Were a district  court . .  . to try to  depart for a

             'discouraged'  reason  without  recognizing  that  it   must
                                    _____________________________________

             explain  how the  case (compared  to other  cases  where the
             ____________________________________________________________

             reason  is present) is  special, its departure  would not be
             _______________________________

             lawful."); Emery,  991 F.2d at  913 (noting that  court gave
                        _____

             "specific  reasons" why  defendant's record  was worse  than

             that of most Category VI offenders).

                       In  this  case,  although  the  sentencing   court

             properly explained why it was departing, it did not  explain

             why a departure  created by moving horizontally  to Criminal

             History Category IV, V, or VI (with an 18-month maximum) was

-8-
                                          8

not  enough   to  remedy  the   Guideline  Criminal  History

             Category's  inadequacy.   It did  not explain  why, in  that

             respect, the case is special or "egregious."  

                       In the absence of any such explanation, and in the

             face of a  record that is silent as to the specifics of past

             bad  behavior, Mendez's past would  seem to justify only the

             horizontal sort of departure "encouraged"  by   4A1.3.   The

             court has not  provided any other basis for  departure.  Cf.
                                                                      ___

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

             (departure  beyond Category  VI  sentence justified  because

             defendant's present offense involved risk to life on ship of
                         _______________

             which  he was  captain,  allowing  a    5K2.0  departure  in

             addition to the   4A1.3 departure).  Consequently, we remand

             the case for further consideration of  defendant's sentence.

             The parties  remain free to  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.

-9-
                                          9