
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
