UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-20911
Conference Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LOUIS GUZMAN GAITAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
March 24, 1999
Before BARKSDALE and EMILIO M. GARZA, Circuit Judges.*
BY THE COURT:
Louis Guzman Gaitan pleaded guilty to conspiracy to possess
with intent to distribute heroin. In his plea agreement, he waived
the right to appeal his sentence unless it was based on an “upward
departure” from the Sentencing Guidelines.
Douglas M. Durham was appointed to represent Gaitan on appeal.
Although the district court did not make an upward departure,
Gaitan, represented by Durham, challenged the two-level increase in
Gaitan’s base offense level, imposed pursuant to U.S.S.G. §
3B1.1(c), for Gaitan’s role in the offense. Nor did Gaitan file a
*
This matter is being decided by a quorum. 28 U.S.C. § 46(d).
reply brief in response to the assertion by the Government that the
waiver precluded the appeal.
Based on the waiver, we dismissed Gaitan’s appeal as
frivolous. And, we ordered Durham to show cause why sanctions
should not be imposed against him for pursuing Gaitan’s appeal in
the light of Gaitan’s waiver and for failing to address the waiver
in the appellate brief.
In response to the show-cause order, Durham asserts that he
viewed the issue raised by Gaitan (claimed error for increasing
Gaitan’s offense level by two levels for his role in the offense)
as falling within the exception to the waiver of appeal language in
the plea agreement (for “upward departures” from the Sentencing
Guidelines). He states that he did not address the waiver in his
brief because he did not perceive it to be in issue.
Durham maintains that he treated the “upward adjustment” to
Gaitan’s offense level as an “upward departure”, based on our
court’s statement in United States v. Perkins, 105 F.3d 976 (5th
Cir. 1997), that “there is ‘little functional difference’ between
an enhancement and an upward departure”. Id. at 980-81 (quoting
United States v. Knight, 76 F.3d 86, 88 (5th Cir. 1996)).
Although Durham is correct that our court has stated that
there is little functional difference between an increase in
offense level and an upward departure, we nevertheless have
recognized that there are important differences. For example, the
- 2 -
district court must give a defendant notice of its intention to
depart upward on a ground not identified as a ground for upward
departure either in the presentence report (PSR) or in a prehearing
submission by the Government. See Burns v. United States, 501 U.S.
129, 138-39 (1991). But, such notice is not required for an upward
adjustment to the offense level, because “[t]he Guidelines
themselves put defense counsel on notice that all possible grounds
for enhancement or reduction are on the table at a sentencing
hearing”. United States v. Knight, 76 F.3d 86, 88 (5th Cir.)
(district court not required to give defendant notice that it is
considering rejecting PSR’s recommendation for decrease in offense
level for acceptance of responsibility and imposing two-level
adjustment for obstruction of justice), cert. denied, 518 U.S. 1011
(1996).
Perkins, which cited Knight for the proposition that there is
little functional difference between an upward adjustment and an
upward departure, does not support Durham’s position. At issue in
Perkins was the propriety of an increase in Perkins’ offense level
pursuant to § 3B1.1(c), which authorizes a two-level increase in
the offense level “[i]f the defendant was an organizer, leader,
manager, or supervisor in any criminal activity” involving less
than five participants. U.S.S.G. § 3B1.1(c). (Gaitan’s appeal
similarly challenges a § 3B1.1(c) upward adjustment; the adjustment
was based on Gaitan’s supervision of two individuals who delivered
- 3 -
heroin pursuant to his instructions.) The commentary to § 3B1.1
states:
To qualify for an adjustment under this
section, the defendant must have been the
organizer, leader, manager, or supervisor of
one or more other participants. An upward
departure may be warranted, however, in the
case of a defendant who did not organize,
lead, manage, or supervise another
participant, but who nevertheless exercised
management responsibility over the property,
assets, or activities of a criminal
organization.
U.S.S.G. § 3B1.1, comment. (n.2) (emphasis added). Perkins
asserted, for the first time on appeal, that his management of
assets of the organization did not warrant an upward departure.
Our court stated that, because Perkins did not exercise
control over another participant, the district court erred by
enhancing Perkins’ sentence under § 3B1.1(c). Nevertheless, it
exercised its discretion not to correct the error, because the
district court “could have validly departed upward based upon
[Perkins’] management of the organization’s assets”, and Perkins
had notice that the increase would be considered. Id. at 980-81.
For § 3B1.1(c), other cases have also distinguished between
upward adjustments and upward departures. In United States v.
Jobe, 101 F.3d 1046 (5th Cir. 1996), cert. denied, ___ U.S. ___,
118 S. Ct. 81 (1997), the district court increased Novoa’s offense
level by two levels pursuant to § 3B1.1(c). Our court vacated the
sentence, because Novoa did not manage or supervise any other
- 4 -
criminal participant in the check kiting scheme. However, our
court noted that its decision was “without prejudice to the
possibility that an upward departure for Novoa’s management
responsibility over the assets involved in the check kiting might
be warranted”. Id. at 1068.
A similar distinction was recognized in United States v.
Giraldo, 111 F.3d 21 (5th Cir.), cert. denied, ___ U.S. ___, 118 S.
Ct. 322 (1997). There, the district court increased the
defendant’s offense level by two levels pursuant to § 3B1.1(c),
based on the defendant’s obtaining the $180,000 that completed the
drug transaction. Our court stated:
Insofar as the district court relied on the
asset management exception to make an upward
adjustment to the offense level, it misapplied
the guidelines. That exception clearly
applies to an upward departure only. The PSR
expressly concludes that there were no
aggravating or mitigating circumstances that
would merit consideration for a departure in
this case.
Id. at 24 (emphasis added). Nevertheless, our court did not vacate
the sentence, because it concluded that the district court would
have imposed the identical sentence based on the defendant’s role
as an organizer of other criminal participants.
Accordingly, counsel’s reliance on the functional similarity
between “upward adjustments” and “upward departures” to justify
pursuing this appeal in the light of Gaitan’s waiver of the right
to appeal in the absence of an upward departure, is quite
- 5 -
misplaced. At the very least, he should have explained such
reliance in his brief. And counsel certainly should have filed a
reply brief.
IT IS ORDERED that, as a sanction for pursuing this appeal
contrary to the waiver, Durham shall not receive any payment for
services rendered and expenses incurred in this appeal.
SO ORDERED
- 6 -