United States v. Trinidad-Lopez

• Court: Court of Appeals for the First Circuit
• Decided: November 6, 1992
• Docket: 92-1359
• Status: Published

Opinion

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

____________________
                                 ____________________

____________________
                                 ____________________

CYR,  Circuit Judge.   Appellant Antonio Trinidad-Lopez
                    CYR,  Circuit Judge.
                          _____________

          pled guilty to one  count of a two-count indictment  charging him

          with  attempting  to bring  aliens  into  the  United  States  in

          violation  of  8 U.S.C.    1324(a)(1)(A)1  and  was sentenced  to

          twenty-four  months  in  prison  and three  years  on  supervised

          release.  Appellant challenges  the district court's  application

          of the sentencing guidelines  in two particulars, contending that

          the court erred  in denying a  three level reduction in  the base

          offense level pursuant to U.S.S.G.   2L1.1(b)(1) and in departing

          above  the applicable  guideline  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  a person is an  alien,
                    brings to or attempts  to bring to the United
                    States  in any manner  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  other than a designated port of  entry for aliens into the

          United  States.  On  board the  vessel were  104 aliens  from the

          Dominican Republic.   The  yawl, which was  approximately thirty-

          five   feet  in   length,  contained   no  food,   life  jackets,

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

          was intercepted.   Appellant was arrested  and identified as  the

          master  of  the vessel.   Ultimately,  he  was indicted  and pled

          guilty  to count one of  the indictment; count  two was dismissed

          pursuant to a plea agreement.

                    At sentencing, appellant objected to two  statements of

          fact contained in the presentence report ("PSR"):  that he was  a

          captain  for  the "Lolo"  organization  and that  he  had brought

          hundreds or thousands  of illegal  aliens to Puerto  Rico in  the

          past.2   A  special agent  of the Immigration  and Naturalization

          Service   ("INS")  testified   that,  as   part  of   an  ongoing

          investigation  of  alien smuggling,  the  INS  was developing  an

          organization chart of the  Lolo organization based on information

          obtained from its informants and members of the organization  who

          had  been arrested.  The INS agent identified appellant, known by

          the nickname "Cubian," as one of  the main boat captains for  the

          Lolo  organization.    According  to the  agent,  Lolo  typically

          receives payment directly from  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  trip.  The agent testified  that appellant

          had been  arrested earlier in  the year for  transporting ninety-

          three illegal Dominican aliens to the island of  Desecheo, Puerto

          Rico, but was  never indicted  because none of  the aliens  would

          testify against him.

                    The  district court  based appellant's sentence  on the

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

          U.S.S.G.      2L1.1(a)(2),    offenses    involving    smuggling,

          transporting,  or   harboring  illegal   aliens,  see   8  U.S.C.
                                                            ___

            1324(a)(1)(A),  are assigned a base offense level of nine.  The

          PSR  recommended a  three  level reduction  pursuant to  U.S.S.G.

            2L1.1(b)(1)  because the  probation  officer found  no evidence

          that the offense was committed for profit.  The court declined to

          allow the  three level  reduction, however, finding  instead that

          "money was  involved in  this alien-smuggling operation  and that

          the master of the  smuggling boat, the [appellant], did  not work

          for free."   The court  increased the base  offense level  by two

          levels pursuant to U.S.S.G.   3B1.3 because appellant, as captain

          of the  vessel, brought to the illegal  enterprise special skills

          necessary  to its  execution.   The  court  granted a  two  level

          reduction for acceptance of  responsibility pursuant to  U.S.S.G.

            3E1.1(a).  Thus,  an adjusted offense  level of nine,  combined

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

          The court  further determined, however, that  an upward departure

          was warranted  and sentenced  appellant to twenty-four  months in

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

5

assessment of $50.

6

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

          A.  U.S.S.G.   2L1.1(b)(1)
          A.  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.   2L1.1(b)(1), which provides for a decrease of three

          levels  if the  defendant smuggled,  transported, or  harbored an

          unlawful  alien  other than  for  profit.    Application  Note  1
                           _____ ____  ___  ______

          explains  that  "'[f]or  profit'  means  for  financial  gain  or

          commercial advantage,  but . . . does not include a defendant who

          commits  the  offense  solely in  return  for  his  own entry  or

          transportation."   Appellant argues  that he is  entitled to  the

          three  level reduction because he  did not charge  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  court   improperly   relied  on

          allegations by an "unreliable  confidential informant" in finding

          that the Lolo organization paid him for the journey.

                    The trial court's application of  the sentencing guide-

          lines to the facts  is reviewed for "clear error,"  United States
                                                              _____________

          v. Camuti,  950 F.2d 72,  74 (1st  Cir. 1991);  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  respect for the

          trial court's  superior opportunity  to judge the  credibility of

          the witnesses, as well as "due  deference to [its] application of

                                          7

the guidelines to the facts."  18 U.S.C.   3742(e).

                    The validity of any claim  of entitlement to a downward

          adjustment  in the base offense level must be demonstrated by the

          defendant,  United States v. Ortiz,  966 F.2d 707,  717 (1st Cir.
                      _____________    _____

          1992);  United States  v. Bradley,  917 F.2d  601, 606  (1st Cir.
                  _____________     _______

          1990);  United  States v.  Ocasio, 914  F.2d  330, 332  (1st Cir.
                  ______________     ______

          1990), by  a preponderance of the evidence.  Cf. United States v.
                                                       ___ _____________

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

          David,  940  F.2d 722,  739  (1st  Cir. 1991)  (preponderance  of
          _____

          evidence  standard  applicable  to  issues of  fact  relating  to

          sentencing),  cert.  denied, 112  S.  Ct.  605 (1991)  and  cert.
                        ____   ______                                 ____

          denied, 112 S.  Ct. 908 (1992) and cert. denied,  112 S. Ct. 1298
          ______                             ____  ______

          (1992) and cert. denied,  112 S. Ct. 2301 (1992).  The government
                     ____  ______

          is  not required  to  establish  defendant's  disentitlement,  as

          appellant assumes.

                    Appellant  offered no  evidence  that  would support  a

          downward adjustment.   In fact,  in his attempt  to convince  the

          court that he accepted  responsibility for the offense, appellant

          admitted to  three such  trips and  stated, "I  have done  it for

          money."  Moreover,  the INS agent  testified that it  is the  es-

          tablished practice  of the  Lolo organization to  collect payment

          directly from the  alien passengers  and to pay  the captain  for

          each  trip.  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  and arrested

          under very similar illegal  circumstances on an earlier occasion.

8

We  cannot conclude  that  the  court  committed clear  error  in

          crediting competent testimony from official investigative sources

          concerning Lolo  organization practice, as to  which no objection

          was   asserted   at   sentencing   and   appellant  produced   no

          countervailing evidence.   Since appellant did  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.  Upward Departure
          2.  Upward Departure
              ________________

Appellant next challenges the upward departure from the

          GSR, which  we review under the  tripartite framework established

          in  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.  Step One:  Unusual Circumstances
                    a.  Step One:  Unusual Circumstances
                        ________________________________

First,    the    determination   that    the   relevant

          circumstances  were  unusual enough  to  warrant  a departure  is

          subject to de novo review.  Diaz-Villafane, 874 F.2d at  49.  See
                     __ ____          ______________                    ___

          also  Figaro,  935  F.2d  at  6; Reyes,  927  F.2d  at  52.   The
          ____  ______                     _____

          sentencing court  based its  departure on  three  factors:   "the

          large  number  of aliens  involved,"  "the  dangerousness of  the

          journey,"  and  the  finding  that  appellant's  criminal history

9

category underrepresented  the magnitude of his  criminal conduct

          in light of  a prior  arrest for similar  conduct.3   Application

          note 8 to U.S.S.G.   2L1.1 plainly states that  "[t]he Commission

          has not considered  offenses involving large numbers of aliens or
                                                                         __

          dangerous or inhumane treatment.   An upward departure should  be
                    __

          considered  in those  circumstances."   (Emphasis added.)   Thus,

          "[t]his  directive  effectively forecloses  further  inquiry into

          step  one of  the  Diaz-Villafane analysis"  once the  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  departure.

          Reyes,  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  appellant  contends  that  the  third  ground

          relied  on  by  the  sentencing  court,  the  prior  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  added).  Thus, U.S.S.G.   4A1.3

          expressly permits  the sentencing  court to consider  a departure

          where the  criminal history category does  not adequately reflect

          the  seriousness of  the defendant's  prior criminal  history, as

          shown by "reliable information,"  including similar adult conduct

          which did not result in a conviction.

b.  Step 2:  Factual Undergirding
                    b.  Step 2:  Factual Undergirding
                        _____________________________

Under the second  step in the  Diaz-Villafane analysis,
                                                   ______________

          we review  for clear error all  findings of fact material  to the

          challenged  departure.   Figaro,  935  F.2d  at  6.    See  Diaz-
                                   ______                        ___  _____

          Villafane, 874 F.2d  at 49.  The  evidence relating to  the first
          _________

                                          11

two  grounds for  departure identified by  the court,  the "large

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

          in dispute.  Thus, the   district court did exactly as invited by

          the Commission,  see U.S.S.G.    2L1.1, comment. (n.8),  as there
                           ___

          can  be no question that the transportation of 104 aliens through

          the Mona passage in a thirty-five foot yawl designed  to carry no

          more  than   fifteen  passengers,  without  food,  life  jackets,

          navigational   equipment,  or  charts,   constitutes  an  offense

          involving a  large number  of aliens  and dangerous  and inhumane

          treatment as contemplated by the guideline, see id.4
                                                      ___ ___

                    The evidence    appellant's prior arrest     supporting

          the third  ground for departure,  see U.S.S.G.   4A1.3,  p.s., is
                                            ___

          not  contested either.    Appellant does  not  deny that  he  was

          arrested  on  May 15,  1991, after  landing  ninety-three illegal

          aliens  on Desecheo Island, Puerto  Rico.  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  May, 1991 investiga-

          tion  as well.  The agent verified  appellant's arrest based on a

          Coast  Guard report and testified that appellant was one of three

          individuals apprehended by the  Coast Guard immediately after the

          ninety-three  illegal  aliens  were  landed  on  Desecheo Island.

          Although the record contains  no information about the conditions

          aboard  the vessel  used for  the May,  1991 passage,  it clearly

          involved the illegal smuggling  of a large number of  aliens into

          the  United  States.   Since  the  court grounded  its  departure

          decision on reliable  information sufficient to demonstrate  that

          appellant  previously  had  engaged  in  similar  adult  criminal

          conduct  that  did  not  result  in  a  criminal conviction,  the

          evidentiary basis for its U.S.S.G.   4A1.3 departure decision was

          sufficient.

c.  Step 3:  Reasonableness
                    c.  Step 3:  Reasonableness
                        _______________________

Under the  third prong  of the Diaz-Villafane  test, we
                                                   ______________

          weigh whether the degree  of the departure was reasonable  in the

          circumstances, according considerable  deference to the  district

          court  decision.   Diaz-Villafane, 874  F.2d at  49-50; see  also
                             ______________                       ___  ____

          Figaro, 935 F.2d at 6.  The twenty-four month sentence imposed by
          ______

          the district court is  more than twice that allowed at  the upper

          limit  of the 4-to-10 month GSR.  We recognize, nonetheless, that

          fortuity  was the  only impediment  to tragedy  for the  104 pas-

          sengers who were traveling without life jackets in an egregiously

          unsafe  and overburdened  wooden  boat through  the   treacherous

13

waters of the  Mona passage.   Moreover, the  district court  was

          faced with  an underrepresentative  offense level  as well  as an
                                                             __ ____  __

          underrepresentative  criminal  history  category.     Appellant's

          criminal  conduct in  connection with  the offense  of conviction

          contributed to the endangerment of more than  100 passengers only

          months after having engaged  in similar illegal conduct involving

          ninety-three passengers.   In these circumstances,  the degree of

          departure cannot be considered unreasonable.  See, e.g., id., 935
                                                        ___  ____  ___

          F.2d at  8-9 (upholding  departure, under  similar circumstances,

          from  0-6 month  GSR to  18  months); Reyes,  927  F.2d at  52-53
                                                _____

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

                    Affirmed.
                    ________

14