
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
