
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1760                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JOSUE FUENTES-VAZQUEZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________            Gabriel Hernandez Rivera for appellant.            ________________________            Antonio  R. Bazan,  Assistant United  States Attorney,  with  whom            _________________        Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior        _____________                          _______________________        Litigation  Counsel,  Joseph J.  Frattallone, Assistant  United States                              ______________________        Attorney, were on brief for appellee.                                 ____________________                                    April 28, 1995                                 ____________________               COFFIN,  Senior  Circuit  Judge.   Appellant  Josue  Fuentes                        ______________________          Vazquez claims that the district  court erred in departing upward          from  the  guidelines  when  it  sentenced  him  for  carjacking.          Finding the  departure  both legally  permissible  and  factually          supportable, we affirm.                                I. Factual Background                                   __________________               Some basic facts are not  in dispute.  On February  1, 1994,          Fuentes  and an accomplice attempted an ill-fated carjacking in a          heavily  congested commercial  section of  Isla Verde,  Carolina,          Puerto Rico.  The targeted victim, Anselmo B. Marquez, turned out          to be an FBI  Agent.  Fuentes pointed a semi-automatic  pistol at          Marquez as the agent  disembarked from his car, and  demanded and          received his keys and  wallet.  A few moments later, Marquez drew          his  official  pistol  from his  waist  bag  and  fired twice  at          Fuentes, wounding him.                 Fuentes' accomplice, waiting in the car  in which the pair          had  arrived at  the scene,  backed up  toward Fuentes.   Fuentes          threw his  gun into the car  and attempted to get  in through the          passenger side window.   He could not.  The  accomplice then left          at  high speed,  initially  dragging Fuentes  alongside the  car.          After  he fell to the  pavement, Fuentes was  detained by Marquez          until local police officers arrived and took him to a hospital.               The circumstances  surrounding the  shooting by  Marquez are          disputed.  Fuentes maintains that, after obtaining Marquez's keys          and wallet,  he sensed  that Marquez's behavior  suggested police          training, and so he decided  to abort the robbery.  He  claims to                                         -2-          have been shot in the back while running toward the get-away car.          Marquez  contends that he fired  his weapon at  Fuentes while the          defendant was  leaning toward him  in a half-crouch  and pointing          his gun at the agent.  The government claims the shot hit Fuentes          in the chest.               Each version  has some documentary support.   The government          points  to  a doctor's  report  from Puerto  Rico  Medical Center          describing  Fuentes' injury as  "GSW [Gun Shot  Wound] to chest."          Another  report from  the hospital,  however, includes  a diagram          explicitly  labeling a spot on  Fuentes' back as  the "orefice of          entrance" and a  similar spot  on his  chest as  the "orefice  of          exit."   His "Discharge Summary"  also states that  he received a          gunshot wound to his back.                Fuentes pled guilty to a single count of carjacking under 18          U.S.C.     2119.    In  his  presentence  report,  the  probation          department  recommended against  an  adjustment  in sentence  for          acceptance of responsibility in part because Fuentes had provided          conflicting  versions of  the events  of the  crime.   The report          noted that  he was  claiming to  be the  sole participant  in the          carjacking and that he had been shot in the back by Marquez.               In a separate section addressing factors that may  warrant a          departure from the applicable  guidelines range, the report noted          that  the court could  consider an  upward departure  because the          offense  conduct  involved potential  risk  of  harm to  innocent          bystanders.  The report continued:               The potential  exchange of gunfire, the  shots fired by               the special agent in self-defense, and the acceleration                                         -3-               of the getaway car in a normally highly congested  area               could  have had  serious  consequences.   Although  the               guideline  for the  offense  of conviction,  in and  of               itself,  has considered varying harms to the carjacking               victim, the  guideline provisions do not  cover harm or               potential injury to others  in the course of committing               the offense.               In his response to  the presentence report, Fuentes objected          only to the acceptance of responsibility conclusion.  His counsel          explained  in  the  response that  there  apparently  had been  a          misunderstanding concerning Fuentes' statements to  the probation          officer   regarding   an   accomplice:   Fuentes   actually   had          acknowledged that  another person  was involved but  claimed that          that  individual  remained  in   the  car  during  the  attempted          carjacking.   As for where  Fuentes was  shot, counsel  submitted          copies  of the  medical records  previously described,  and noted          that they "clearly indicated that he was shot in the back."               At the  sentencing hearing,  Fuentes' attorney  reminded the          court of the objection regarding acceptance of responsibility and          urged  the court to find that Fuentes had demonstrated "a genuine          personal  responsibility  for  his  actions"  based  on  a  sworn          statement  that he  had submitted recounting  his version  of the          crime and on statements made to the probation officer.               The  court  seemingly   accepted  the  attorney's  entreaty,          responding with the following comment:               All  right, in essence  that is  a modification  to the               information contained in  the pre-sentence report,  but               aside  from   that,  any   other  changes  as   to  the               information contained in the pre-sentence report?          The attorney expressed no further concerns, and the court went on          to impose sentence.  Beginning with  a base offense level of  20,                                         -4-          see    2B3.1(a),  the court  added five  levels for  the specific          ___          offense characteristic of brandishing a firearm and then deducted          three  levels for  acceptance of  responsibility.   The resulting          base  offense level, 22, produced  a guideline range  of 41 to 51          months.   The  court then  turned to  consideration of  an upward          departure   and,  essentially   adopting  the  language   of  the          presentence report,1 added a  two-level departure to increase the          imprisonment range  to 51 to  63 months.   The court  imposed the          maximum.  No objection was raised to the departure.               On appeal,  Fuentes claims  that the departure  was improper          both legally  and factually.  He asserts that the risk of harm to          others is commonplace in the crime of armed carjacking, and it is          therefore inappropriate to  add to the  guidelines range on  that          basis.  Additionally, Fuentes argues that Agent Marquez fired his          weapon without cause -- since he, the perpetrator, was retreating                                        ____________________               1  The court stated it would consider a departure                    on  the  basis   that  the  offense   conduct                    involv[ing]   potential   risk  of   harm  to                    innocent  by-standers  such  as  pedestrians,                    patrons  or  drive-by motorist[s]  during the                    commission  of  the   instant  offense,   the                    potential  exchange of gun  fire, shots fired                    by a  Special Agent  in self defense  and the                    acceleration  of the  getaway  car within  an                    area  known  for  its  high  concentration of                    people,  could have  led  to  serious  bodily                    injury  or  life threatening  consequences to                    any individual.                         The  Guideline  for  the   offens[e  of]                    conviction  in and  by itself  has considered                    harm to the car jacking victim, the Guideline                    provisions  do  not cover  harm  or potential                    injury to others in  the course of committing                    the offense, thus the Court imposes a 2 level                    departure enhancement . . . .                                         -5-          from  the crime scene --  and Fuentes consequently  should not be          blamed for the risk to bystanders from the shooting.                                    II. Discussion                                        __________               We  begin  by  noting  the  limited  range  of  our  review.          Sentencing challenges,  like other issues  arising from  criminal          convictions,  may not  be raised  for the  first time  on appeal.          United  States v.  Dietz, 950 F.2d  50, 55  (1st Cir.  1991).  An          ______________     _____          unpreserved claim will be  considered only in order to  prevent a          "miscarriage of justice."  United States v. Agoro, 996 F.2d 1288,                                     _____________    _____          1291 (1st Cir. 1993).               So far  as we can tell from the record, the claim brought by          Fuentes on appeal was never presented to the district court.   As          described  above, his response to  the presentence report and the          colloquy  at  the  sentencing   hearing  focused  solely  on  his          entitlement  to  the  three-level adjustment  for  acceptance  of          responsibility.   Although  his appellate  argument on  departure          implicates some  of  the same  facts  relevant to  acceptance  of          responsibility -- most notably, the circumstances surrounding the          shooting  --  the court's  attention  was never  directed  to the          problems Fuentes now ascribes to its decision to depart.  Indeed,          counsel may well have made a deliberate decision not to challenge          the court's statement  that Agent Marquez  shot Fuentes in  self-          defense  for  fear that  it would  raise  anew the  acceptance of          responsibility issue.  Even  with the two-level upward departure,          Fuentes  came  out  ahead  with  the  three-level  acceptance  of          responsibility adjustment.                                         -6-               In any event,  the departure is  supportable even under  the          standard  applicable to  fully preserved  claims of  error.   Our          typical  review  of  departure  decisions involves  a  three-step          analysis:               (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. Mendez-Colon, 15 F.3d 188, 189 (1st Cir. 1994).          _____________    ____________               The  district court  felt that  a departure  was appropriate          because  commission of  an armed  hijacking in a  busy commercial          area created an  unusually high  risk of harm  to bystanders  and          nearby motorists.   We agree that this is a permissible basis for          departure.  The robbery guideline, which is the one applicable to          carjackings,2  provides  for an  increase  in  sentence based  on          actual  injury  only   to  the  victim  of  the  crime.    See                                             ______                     ___          2B3.1(b)(3).    In  addition,   the  section  of  the  guidelines          discussing appropriate grounds for  departure notes as an example          that  "because the robbery guideline does not deal with injury to          more  than one  victim, departure  would be warranted  if several          persons  were  injured."   See    5K2.0  (Policy Statement).   No                                     ___          reference  is  made  to  possible  innocent  bystanders,  and  we          therefore  think it clear that the guideline itself does not take                                        ____________________               2 This  guideline was  amended in 1993  explicitly to  cover          carjackings.  See   2B3.1(b)(1)(B).                        ___                                         -7-          into  account  harm  to  individuals  other  than  the  victim or          victims.               We  also must consider whether creation of a risk to others,                                              __________________          rather than causing them actual harm, is sufficient to warrant an          increased  sentence.   Fuentes  claims that  such  a risk  is  an          ordinary feature  of an armed  carjacking, and that  its presence          therefore  should  not trigger  a  departure  from the  carefully          calibrated   guidelines   punishments.      This   contention  is          contradicted, however,  both by the applicable  guideline's focus          on the victim and  by commentary in the Sentencing  Guidelines on          the relevance of the  risk created in a criminal encounter.   The          Commentary  to    1B1.3  states that  when  a specific  guideline          addresses only harm sustained,               the risk  created enters into the  determination of the               offense level  only insofar as it  is incorporated into               the  base offense  level.   . .  . When  not adequately               taken into account by the applicable offense guideline,               creation  of a risk may provide a ground for imposing a               sentence above the applicable guideline range.            1B1.3, comment.  (n.5).  The robbery guideline  is cited as one          that refers only to actual harm.               Because we  have concluded that  the offense level  does not          contemplate impact  on anyone other than  the targeted carjacking                      ______          victims, the risk created to bystanders necessarily was not taken                       ____          into  account in setting the  punishment.  We  think it therefore          within the trial court's authority to depart from the  guidelines          when the offense conduct creates a substantial risk to others, as          when an armed carjacking is committed in a busy commercial area.                                         -8-               Having  concluded  that  the  reasons  the  court  gave  for          departing are "of the  sort that might permit  a departure in  an          appropriate case,"  Mendez-Colon, 15 F.3d  at 189,  we next  must                              ____________          consider whether such circumstances  actually exist in this case.          In  explaining the decision  to depart, the  district court noted          the "potential exchange of  gun fire," the actual shots  fired by          the special agent "in  self defense" and the acceleration  of the          getaway car "within an  area known for its high  concentration of          people."  Fuentes'  challenge centers on the  shooting: he claims          that the danger to bystanders arose not from his conduct but from          the agent's  unjustified shooting as he,  Fuentes, was retreating          from the confrontation.               As previously noted, a factual dispute exists concerning the          circumstances  surrounding   the  shooting.    Although  a  court          normally  should  make  factual  findings  on  contested  matters          related to  sentencing, see Fed.  R. Crim.  P. 32 (C)(1),  we are                                  ___          untroubled  here by  the  court's omission  both because  Fuentes          failed to  draw the issue to  its attention and  because the risk          originated  with  Fuentes and  his  undisputed  brandishing of  a          firearm.  On the question  of potential harm to others, it  is of          little  moment whether Marquez was justified  in shooting when he          did.   A  defendant  who  attempts  a  carjacking  in  a  heavily          congested area while wielding  a firearm has created a  risk that          innocent  persons will  be  harmed  by  a  precipitous  act  that          triggers use of his or someone else's weapon.  This,  it seems to          us, was the district court's primary concern.  Whether a shooting                                         -9-          actually occurred, and how, are matters we think more relevant in          reviewing the extent of the departure than in determining whether          a departure is permissible at all.               And,  as for the degree  of departure here,  we think it was          eminently reasonable.  The court used as an analogy the guideline          section  providing for an increase of two levels if the defendant          recklessly created a substantial risk of  death or serious bodily          injury  to another person  while in flight  from a crime.   See                                                                        ___          3C1.2.   Assuming that the  court would have  imposed the maximum          term  with  or  without  the  departure,  the  increase  from the          departure was therefore 12 months.  We think this a judicious and          supportable additional penalty.3               One additional  aspect of  this case  makes its result  even          more clearly correct.  Ironically, it appears  that the two-level          increase  in base  offense level  achieved through  the departure          actually  should  have been  imposed under  a requirement  of the          guidelines overlooked by both the probation office and the court,          and  never addressed  by the  parties.   In November  1993, three          months before the incident at issue in this case,    2B3.1 -- the          robbery guideline -- was amended to include specific reference to          carjacking, a crime  that had been added  to the criminal  code a          year  earlier.  See generally United States v. Singleton, 16 F.3d                          ___ _________ _____________    _________          1419, 1424-25 (5th  Cir. 1994).  Subsection (b)  of   2B3.1 lists          "specific offense characteristics" that trigger  increases to the                                        ____________________               3 Indeed, part of the court's rationale for the departure --          the risk  created  by the  high-speed  flight --  falls  directly          within   3C1.2.                                         -10-          base offense level of 20.  The section as amended  in 1993 states          that  if  the offense  at  issue  involved carjacking,  the  base          offense   level  should   be   increased  by   two  levels.                2B3.1(b)(1)(B).   By  departing upward,  therefore, the  district          court simply achieved what should  have been the proper  baseline          sentencing range.               For  the foregoing  reasons,  the judgment  of the  district               ____________________________________________________________          court is affirmed.           _________________                                         -11-
