USCA1 Opinion
[FOR APPENDIX, CONTACT CLERK'S OFFICE]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1346
UNITED STATES,
Appellee,
v.
JUNIOR MENDEZ-COLON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
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and Torruella, Circuit Judge.
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Laura Maldonado Rodriguez, Assistant Federal Public Defender,
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with whom Benicio Sanchez Rivera, Federal Public Defender, was on
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brief for appellant.
Ernesto Hernandez-Milan, Assistant United States Attorney, with
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whom Charles E. Fitzwilliam, United States Attorney, and Joseph A.
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Quiles-Espinosa, Senior Litigation Counsel, were on brief for
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appellee.
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January 19, 1994
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BREYER, Chief Judge. On October 30, 1992, the
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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
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History Category of III, reflecting six criminal history
points: three points for the prior felony conviction, id.
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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
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calculations produced a Guideline Sentence range of two to
eight months imprisonment. Id. ch. 5, part A (Sentencing
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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,
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874 F.2d 43, 49 (1st Cir.), cert. denied, 493 U.S. 862
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(1989); United States v. Rivera, 994 F.2d 942, 950-52 (1st
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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
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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"
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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).
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Therefore, the first part of Diaz-Villafane's test is
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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
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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
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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
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(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
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when the court should depart because of a Criminal History
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Category's inadequacy, also describes how the court should
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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
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Commission contemplates that there may,
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on occasion, be a case of an egregious,
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serious criminal record in which even
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the guideline range for Criminal History
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Category VI is not adequate to reflect
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the seriousness of the defendant's
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criminal history. In such a case, a
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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.
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Id. 4A1.3 (p.s.) (emphasis added). In essence, this
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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
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v. Aymelek, 926 F.2d 64, 70 (1st Cir. 1991). If even the
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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
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occasion," in the case of an "egregious, serious criminal
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record." U.S.S.G. 4A1.3 (p.s.) (emphasis added).
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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
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court "can feel confident, because of this encouragement,
that a departure would not be 'unreasonable'"). However,
the same policy statement "discourage[s]" departures based
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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
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have held that a court may sometimes depart despite a
Guideline "discouragement." Id. (where Guidelines provide
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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
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v. Emery, 991 F.2d 907, 913 (1st Cir. 1993) (upholding
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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
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951 ("Were a district court . . . to try to depart for a
'discouraged' reason without recognizing that it must
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explain how the case (compared to other cases where the
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reason is present) is special, its departure would not be
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lawful."); Emery, 991 F.2d at 913 (noting that court gave
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"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
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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.
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United States v. Figaro, 935 F.2d 4 (1st Cir. 1991)
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(departure beyond Category VI sentence justified because
defendant's present offense involved risk to life on ship of
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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
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is remanded for resentencing in accordance with this
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opinion.
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Note: See Slip Opinion for copy of Appendix.
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