United States v. Valencia

Opinion

USCA1 Opinion

November 5, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 92-2306

UNITED STATES,

                                      Appellee,

                                          v.

                                   HUVAR VALENCIA,

                                Defendant, Appellant.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
                                            ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Bruce A. Jordan  and Archer, Perry & Jordan,  P.A., on brief
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          for appellant.
               Jay  P. McCloskey, United  States Attorney, and  Margaret D.
               _________________                                ___________
          McGaughey,  Assistant  United  States  Attorney,  on   brief  for
          _________
          appellee.

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                                  __________________

Per Curiam.   Appellant Huvar Valencia  pled guilty
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            to  a  two  count indictment  charging  conspiracy  to commit

            offenses against the United States in violation of 18  U.S.C.

               371, and  attempted smuggling  of aliens  into the  United

            States in violation of 8 U.S.C.   1324(a)(1)(A).  The objects

            of the conspiracy were to travel and use telephone facilities

            in interstate  commerce  with intent  to  commit a  crime  in

            violation  of  18  U.S.C.     1952(a)(2)  and  1952(a)(3), to

            attempt to bring aliens  into the United States  in violation

            of  8  U.S.C.     1324(a)(1)(A),  to  transport  firearms  in

            interstate  commerce  with  intent  to  commit  a  felony  in

            violation of  18 U.S.C.    924(b), and to transfer  a firearm

            knowing it would  be used  to commit a  crime of violence  in

            violation  of     18  U.S.C.  924(h).    In   sentencing  the

            defendant,  the district  court  upwardly  departed from  the

            applicable  guideline sentencing range  (GSR) of four  to ten

            months  and sentenced  Valencia  to  a  term  of  twenty-four

            months.  Valencia appeals from this sentence.  

                      For the most  part, the facts in this  case are not

            in dispute.   According to the Pre-Sentence  Report, Valencia

            was  a participant  in a  plot to  break some members  of the

            Medellin   cocaine  cartel  out  of  a  Canadian  prison  and

            transport them to the United States, from where they would be

            flown to Colombia.   Valencia's alleged  role was to  deliver

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vehicles and weapons1 from the  United States to members of a

            break-out team in  Canada.  Co-conspirators based  in Canada,

            and not the  defendant, served time  in Canadian prisons  for

            conduct  related to  this  break-out  plan,  in  addition  to

            receiving  prison terms in the United States district court.2

            The sole  issue  on  appeal is  whether  the  district  court

            departed upward to the extent that it did in an impermissible

            attempt to  achieve symmetry between Valencia's  sentence and

            the combined Canadian and United States  sentences of his co-

            conspirators.

                      The district  court stated at  sentencing that  the

            upward   departure  was  rooted  principally  in  U.S.S.G.   

            5K2.9.3   The  court  found    5K2.9  applicable as  Valencia

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1.  Although Valencia pled guilty  to conspiracy to receiving
            and  transferring firearms, he  denied at sentencing  that he
            was  the person who  actually delivered these  weapons across
            the border.

            2.  Co-conspirators received  sixteen month sentences  in the
            United  States  district  court  and,  it  appears,  received
            twenty-four  month sentences in  Canadian courts (a  total of
            forty  months  in  United  States  and  Canadian  sentences).
            Valencia  argues that  he should  have  received, at  most, a
            sixteen month  sentence in  the district  court and that  the
            only  explanation for his  twenty-four month sentence  was an
            attempt  by the district court to achieve sentencing symmetry
            between his term and his co-defendants' total terms.  

            3.  Section 5K2.9  Criminal Purpose (Policy Statement) 
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                      If  the defendant committed the offense in order to
                      facilitate  or conceal  the  commission of  another
                      offense, the  court may increase the sentence above
                      the   guideline  range   to   reflect  the   actual
                      seriousness of the defendant's conduct.

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committed  his offenses in order to facilitate or conceal the

            commission of another offense--the attempted prison  breakout

            of  the  Medellin cartel  members.   In  addition,  the court

            stated that in  deciding to depart upward,  it considered the

            fact that semi-automatic weapons were used, the disruption of

            governmental function that  would have resulted had  the plan

            to break into the Canadian  prison been successful, and  "the

            nature of  the unusual and extreme conduct given the analysis

            of the Court in United States v. Johnson."4 
                            _____________    _______

                      The  upward departure was  from Offense Level  9 to

            Offense Level 17.  The defendant's twenty-four month sentence

            represented  a  140% increase  over  the GSR's  ceiling.   In

            explaining the extent  of the upward departure,  the district

            court stated that  it had considered the same  factors it had

            considered  in deciding  to depart  upward.   The  court also

            stated that it  had departed upward to the level  that it did

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            4.  In Johnson, 952  F.2d 565 (1st Cir.  1991), cert. denied,
                   _______                                  ____________
            ___ U.S.  ___,  113 S.  Ct.  58, 121  L.  Ed. 2d  27  (1992),
            defendants  were  convicted  of  conspiracy  and  substantive
            offenses  relating to  their  roles  in terrorist  activities
            directed towards the British in Northern Ireland.  On appeal,
            we   upheld  as  proper  grounds  for  upward  departure  the
            circumstances  relied upon  by the district  court, including
            "the   potential  for  death  to  innocent  people"  and  the
            "extreme"  amount  of  "planning and  sophistication"  in the
            conspiracy.  952 F.2d at 583.   The upward departure here  is
            warranted on the same grounds.

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based  on the  defendant's role  in  the undertaking  and his

            culpability.5 

                      In  United  States  v. Wogan,  938  F.2d  1446 (1st
                          ______________     _____

            Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 441, 116 L. Ed.
                   ____________

            2d 460  (1991), we held that  the district court erred,  as a

            matter of  law, in basing  a downward departure solely  in an

            effort to achieve sentencing parity between Wogan and his co-

            defendant.   In  the instant  case, the district  court noted

            from the  bench that it was mindful  of our decision in Wogan
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            and  specifically stated that  it did not  depart to maintain

            any  kind  of  equalization  or  symmetry  between Valencia's

            sentence  and  those  of  his  co-defendants.    The  written

            judgment  stated, however,  that the  court  "also took  into

            consideration the  sentences of the  co-defendants, including

            the  imposition of Canadian prison  terms for like or similar

            conduct."     Valencia relied  on this  apparent conflict  in

            support of his contention  that, contrary to the teaching  of

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            5.  Defendant  argues   that  the  district   court  did  not
            specifically explain why it departed  upward to Level 17.  We
            have previously stated that
                 when   the   court   has   provided   a    reasoned
                 justification for  its decision to depart, and that
                 statement  constitutes  an  adequate  summary  from
                 which   an  appellate   tribunal   can  gauge   the
                 reasonableness of the departure's extent, it has no
                 obligation to  go further  and attempt  to quantify
                 the  impact  of  each  incremental  factor  on  the
                 departure sentence.
            United States  v. Emery, 991  F.2d 907, 913 (1st  Cir. 1993).
            _____________     _____
            Here,  the court's articulated grounds for departing, and for
            the extent of the departure, were adequate.

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Wogan, the district court departed  to the extent that it did
            _____

            to achieve symmetry between his own sentence and those of co-

            defendants.         At   the  request   of  the   government,

            however,  we  remanded the  case  to  the district  court  to

            clarify the record.  In response, the district court issued a

            memorandum stating that the oral statements made by the court

            at sentencing correctly  reflect the basis of  its sentencing

            decision and that "[t]he sentences received by Mr. Valencia's

            co-defendants were not  considered by the court  in departing

            from the Guidelines  or the extent of  such departure."    We

            are  satisfied that the  district court's response  on remand

            disposes of Valencia's  argument to the  extent based on  any

            arguable conflict in  statements made by the  district court.

            See also United States  v. Villano, 816 F.2d 1448, 1450 (10th
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            Cir. 1987) (en banc) ("It is a firmly established and settled

            principle of federal  criminal law that an  orally pronounced

            sentence controls over  a judgment and commitment  order when

            the two conflict.  This rule is recognized in virtually every

            circuit.") (footnote omitted).  Accordingly, the judgment  is

            affirmed.  Loc. R. 27.1.
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