
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          November 5, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                  __________________                     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               _______________      _____________________________          for appellant.               Jay  P. McCloskey, United  States Attorney, and  Margaret D.               _________________                                ___________          McGaughey,  Assistant  United  States  Attorney,  on   brief  for          _________          appellee.                                  __________________                                  __________________                      Per Curiam.   Appellant Huvar Valencia  pled guilty                      __________            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                                         -2-            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                                            ____________________            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)                                ________________                      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.                                         -3-            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                                            ____________________            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.                                         -4-            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                                                                    _____            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                                            ____________________            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.                                         -5-            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            ________ ______________    _______            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.            _________                                         -6-
