United States v. Nai Fook Li

United States Court of Appeals
For the First Circuit
____________________

No. 97-2034

UNITED STATES,
Appellee,

v.

NAI FOOK LI,
Defendant, Appellant.

____________________

No. 97-2413

UNITED STATES,
Appellee,

v.

YIU MING KWAN,
Defendant, Appellant.

____________________

No. 98-1229

UNITED STATES,
Appellee,

v.

JU LIN,
Defendant, Appellant.

____________________

No. 98-1230

UNITED STATES,
Appellee,

v.
 BEN LIN,
Defendant, Appellant.

____________________

No. 98-1303

UNITED STATES,
Appellee,

v.

HUI LIN,
Defendant, Appellant.

____________________

No. 98-1447

UNITED STATES,
Appellee,

v.

MAO BING MU,
Defendant, Appellant.

____________________

No. 98-1448

UNITED STATES,
Appellee,

v.

SANG LI,
Defendant, Appellant.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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 [Hon. Robert E. Keeton, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Boudin and Stahl, Circuit Judges.

_____________________

Charles W. Rankin, with whom Catherine J. Hinton, Rankin & Sultan,
Sara A. Rapport and Perkins, Smith & Cohen were on brief, for
appellants Nai Fook Li and Yiu Ming Kwan.
Chris H. Mangos, by appointment of the Court, for appellant Ju
Lin.
Paul J. Garrity, George F. Gormley and Edward P. Ryan, Jr., by
appointment of the Court, were on joint brief, for appellants Ben Lin,
Mao Bing Mu and Sang Li.
Heidi B. Shore, by appointment of the Court, for appellant Hui
Lin.
Deborah Watson, Attorney, Department of Justice, with whom Donald
K. Stern, United States Attorney, Alex Whiting, Assistant United States
Attorney and Susan Hanson-Philbrick, Assistant United States Attorney,
were on brief, for appellee.

____________________

February 29, 2000
____________________

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 STAHL, Circuit Judge. Before the Court are appeals following

the conviction and sentencing of defendants-appellants Hui Lin, Nai

Fook Li, Yiu Ming Kwan, Ju Lin, Mao Bing Mu, Sang Li, and Ben Lin (the

“appellants”). In an en banc opinion issued today, we rejected several

arguments three of the appellants raised concerning their purported

rights under two international treaties. In this panel opinion, we

address the balance of all of the appellants' claims. We reject their

challenges, and affirm the convictions and sentences.

We adopt in full, and reference herein, the facts and

procedural history as recited in the companion en banc opinion

mentioned above. Put very briefly, the appellants engaged in a

conspiracy to smuggle nationals of the People's Republic of China

(“China”) into the United States on a ship called the XING DA. Hui

Lin, Yiu Ming Kwan, and Nai Fook Li (the “land-based defendants”)

operating out of the United States, met with various law enforcement

personnel, including Immigration and Naturalization Service Special

Agent Michael Rendon and Coast Guard Agent Rick Cox. Rendon, Cox, and

their associates posed as fishermen who owned a boat on which they were

willing to transport the aliens during the final leg of their journey

from China. The land-based defendants negotiated with the agents and

acted as liaisons between the agents and the remaining appellants.

Meanwhile, Mao Bing Mu, Sang Li, Ju Lin, and Ben Lin (the “shipboard

defendants”) organized the XING DA's trip from China and traveled

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aboard the vessel as it progressed toward the rendezvous with the

agents' boat. It appears that Ju Lin was, in the words of the XING DA

passengers, “the boss,” that Ben Lin piloted the ship, and that Mao

Bing Mu and Sang Li, among others, acted as “enforcers” to keep the

aliens under control during the long trip. Before its rendezvous with

the agents' boat, the XING DA was intercepted and boarded by officers

of the United States Coast Guard.

Discussion

In this opinion, we address various evidentiary and

sentencing issues raised by the appellants. We reject each challenge.

I. Denial of Appellant Ben Lin's Motion to Suppress Evidence of
His Conduct Tending to Demonstrate That He Was the Captain
of the Ship

Ben Lin argues that the district court erred in refusing to

suppress evidence that he went to the bridge of the ship and reduced

the speed of the XING DA in response to a request by the Coast Guard

boarding team. He claims that this action constituted a non-Mirandized

communicative act in response to custodial interrogation and therefore

should have been suppressed under Miranda v. Arizona, 384 U.S. 436

(1966).

It is well established that Miranda warnings must be

communicated to a suspect before he is subjected to "custodial

interrogation." See United States v. Ventura, 85 F.3d 708, 710 (1st

Cir. 1996). A "custodial situation necessitating Miranda warnings

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arises . . . where 'there is a formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.'" United

States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987) (quoting California

v. Beheler, 463 U.S. 1121, 1125 (1983)). The term “interrogation”

encompasses not only express questioning but also "any words or actions

on the part of the police (other than those normally attendant to

arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the suspect." Rhode Island v.

Innis, 446 U.S. 291, 301 (1980) (internal footnotes omitted).

We do not agree that the Coast Guard's request that the XING

DA's crew slow the ship for further boarding can be construed as a

custodial interrogation under Miranda. First, notwithstanding any

suspicion that the XING DA was smuggling aliens into the United States,

the Coast Guard's routine stop, boarding, and inspection of a vessel on

the high seas is not considered “custodial.” See United States v.

Magdaniel-Mora, 746 F.2d 715, 723 (11th Cir. 1984); United States v.

Gray, 659 F.2d 1296, 1301 (5th Cir. 1981). The "custody" determination

employs an objective test; the only relevant inquiry is how a

reasonable man in the suspect's position would have understood his

situation. See Ventura, 85 F.3d at 711. By all accounts, the XING DA

crew consented to the Coast Guard's boarding. The request that the

crew slow the ship -- to which Ben Lin responded -- was made during the

opening moments of this boarding. No arrests had been made at that

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point, and no accusations of smuggling had been leveled. The officers

had merely commenced a routine safety inspection and obtained a copy of

the ship's registration papers. Moreover, although the crew members

were gathered in one section of the ship during the inspection, it

appears that the Coast Guard had neither applied nor threatened any

force. Thus, at the time Ben Lin engaged in the putatively

communicative behavior at issue, the boarding and inspection had not

yet risen to the level of a "formal arrest or restraint on freedom of

movement of the degree associated with formal arrest." Stansbury v.

California, 511 U.S. 318, 322 (1994); see also United States v.

Rioseco, 845 F.2d 299, 303 (11th Cir. 1988) (holding that the appellant

was not in "custody" during an initial boarding, despite the existence

of probable cause to arrest, because the appellant was not told he was

under arrest and because the Coast Guard merely engaged in a routine

boarding and inspection procedure in gathering the crew to one area of

the ship).

Further, even if appellant had been in "custody" for Miranda

purposes, we cannot describe Officer Hilbert's request to slow the ship

as "interrogation." The simple request to slow the ship was not a

remark that Officer Hilbert should have known was reasonably likely to

elicit an incriminating response. Rather, the request appears to be of

the type that would normally attend a nautical arrest. Communications

that are "normally attendant to arrest and custody" are not

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“interrogation” as the word is understood by Miranda. Innis, 446 U.S.

at 301.

For all of these reasons, we reject Ben Lin's challenge to

the district court's denial of his motion to suppress.

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II. Admission of Evidence of the Conditions On Board the Ship
and the Treatment of the Passengers on the Vessel

Appellants Mao Bing Mu, Sang Li, and Ben Lin next argue that

the district court erred in allowing the government to present evidence

concerning the conditions aboard the XING DA, the deprivations suffered

by the alien passengers, and the harsh treatment of those passengers.

They contend that this evidence should have been excluded under Fed. R.

Evid. Rule 403 because its probative value was substantially outweighed

by the risk of unfair prejudice. The district court found that the

testimony's probative value exceeded any prejudicial impact.

Admissibility determinations under Rule 403 are committed to the trial

court's sound discretion, see United States v. Rodríguez-Estrada, 877

F.2d 153, 155 (1st Cir. 1989), and we review only for an abuse of that

discretion, see United States v. Aguilar-Aranceta, 58 F.3d 796, 801

(1st Cir. 1995). We find no such abuse here.

Appellants refer to the graphic testimony of the filthy

conditions prevailing in the hold of the ship, the lack of adequate

safety devices on board, and the beatings suffered by the passengers,

arguing that this evidence was not relevant to any issues to be

determined by the jury and that, even if relevant, it was so unfairly

prejudicial that it should have been excluded. We agree with

appellants that this evidence was prejudicial in that it had the

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potential to inflame the jury against those who created and controlled

this inhumane environment.

The government responds first that in order to present proof

that the criminal enterprise was conducted “for profit,” it needed to

establish not only the price paid by the aliens for the 54-day voyage,

but also the trip's minimal costs to the coconspirators. Those costs,

the government argues, were best evidenced by the XING DA's shoddy

conditions, meager provisions, and inadequate safety measures. Second,

the government argues that Mao Bing Mu and Sang Li served as

"enforcers" over the aliens and that, without evidence of the beatings,

the government would not have been able to prove their participation in

the conspiracy.

We agree that this evidence was probative to material issues

to be determined by the jury, notwithstanding its prejudicial nature.

In their brief, appellants admit that the evidence of beatings was

relevant to the roles of Mao Bing Mu and Sang Li.1 In fact, it appears

1Although appellants concede the relevance of the beatings, they
complain that the evidence of the "continuing effects of the beatings"
on the victims went far beyond that which was relevant to the role
issue. However, the government correctly notes that it did not elicit
any such "continuing effects" testimony; appellants did. Chou Lee Li
testified on direct examination by the government only that he "felt
pain all over" immediately after the beating. It was Ben Lin's counsel
who, on cross-examination of Chou Lee Li, introduced Agent Rendon's
notes from the Guantanamo Bay interviews, which recounted Li's
statement that he still suffered pain from the beating. Sang Li's
counsel then offered this statement into evidence. Having brought that
evidence out at trial, defendants may not now complain it was error to
have let them do so.

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that the evidence of the beatings was the only evidence offered that

was relevant to this question. As for the evidence of shipboard

conditions, evidence of the substantial price paid for passage to the

United States goes a long way towards proving profit, but it does not

conclusively prove the issue without some showing of the costs of the

voyage. Thus, evidence regarding the inadequacy of the vessel,

including its physical limitations and spartan provisions, was very

probative to this element of the offense.

Having found that the evidence at issue was both prejudicial

and probative, we must balance these findings in making a Rule 403

determination. The district court is granted "especially wide

latitude" in Rule 403 balancing. See United States v. Rivera, 83 F.3d

542, 545 (1st Cir. 1996). "Only rarely -- and in extraordinarily

compelling circumstances -- will we, from the vista of a cold appellate

record, reverse a district court's on-the-spot judgment concerning the

relative weighing of probative value and unfair effect." Freeman v.

Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988); see also United

States v. Tutiven, 40 F.3d 1, 6 (1st Cir. 1994) (citing Freeman in

upholding an admissibility determination), cert. denied, 514 U.S. 1031

(1995). The legal standard is also somewhat weighted in favor of

admissibility. In order to be excluded, the evidence must be not only

be prejudicial, but unfairly prejudicial, and must not only outweigh

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probative value, but substantially outweigh probative value. See

Rivera, 83 F.3d at 545.

Based on this deferential standard, we cannot find that the

district court committed reversible error in admitting the evidence at

issue. While the evidence certainly had a potential for prejudice, it

was also highly relevant to issues before the jury. This case simply

does not present the type of "extraordinarily compelling circumstances"

that would warrant our upsetting the balance already struck by the

district court. We thus accord deference to the district court's Rule

403 determination.

III. Upward Departure Based Upon the Condition of the Vessel and
the Treatment of the Passengers Aboard the Vessel

Appellants Nai Fook Li, Yiu Ming Kwan, Ju Lin, and Hui Lin

next argue that the district court erred in imposing an upward

departure from the sentencing guidelines due to the conditions on board

the vessel and the treatment of the aliens. At each appellant's

sentencing hearing, the court imposed an upward departure pursuant to

U.S.S.G. § 2L1.1, Application Note 5, which states that "[i]f the

offense involved dangerous or inhumane treatment, death or bodily

injury, possession of a dangerous weapon, or substantially more than

100 aliens, an upward departure may be warranted." The court found by

a preponderance of the evidence that each of these four disjunctive

conditions existed in this case, based on specific findings of (1)

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inadequate food and water; (2) corporal punishment; (3) bodily injury

and threats of serious bodily injury; (4) degrading conditions and

confinement in the hold of the ship; (5) inadequate safety measures on

the ship; (6) possession of numerous weapons; and (7) involvement of

more than 100 aliens. With respect to appellants Hui Lin and Nai Fook

Li, the court also supported the decision to depart upward by invoking

U.S.S.G. § 5K2.8, which authorizes a departure when the defendant's

conduct was "unusually heinous, cruel, brutal, or degrading to the

victim."

The four appellants argue that the district court erred in

finding that the conditions on board the XING DA were reasonably

foreseeable to them. In so arguing, appellants recognize that, in the

case of a jointly undertaken criminal activity such as a conspiracy,

each of them is responsible for all of the reasonably foreseeable acts

and omissions of others in furtherance of the conspiracy. See U.S.S.G.

§ 1B1.3(a)(1)(B).2

2Sentencing Guideline § 1B1.3(a)(1)(B) does not expressly apply to the
upward departure under Application Note 5 to § 2L1.1. It expressly
applies to determinations of the base offense level, specific offense
characteristics, Chapter Two cross-references, or Chapter Three
adjustments. However, appellants do not object to the district court's
use of the "reasonably foreseeable conduct" principle in applying these
upward departures; they actually agree with it. Because we conclude
that the conditions aboard the XING DA were foreseeable to these
appellants, we need not determine whether foreseeability was required
or not. We will assume arguendo, without holding as much, that
foreseeability was required.

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 We review departures for abuse of discretion. See Koon v.

United States, 518 U.S. 81 (1996); United States v. Brewster, 127 F.3d

22, 25 (1st Cir. 1997), cert. denied, 118 S. Ct. 1543 (1998). However,

factual findings at sentencing must satisfy only a preponderance of the

evidence standard, see United States v. Blanco, 888 F.2d 907, 909 (1st

Cir. 1989), and we review those findings only for clear error, see

United States v. Mocciola, 891 F.2d 13, 16 (1st Cir. 1989). Because

each appellant challenges factual findings regarding his participation

in, knowledge of, or ability to have foreseen the inhumane treatment

and conditions aboard the XING DA, it is this latter standard that

applies here, at least for Ju Lin, Nai Fook Li, and Yiu Ming Kwan, who

have preserved this issue for appeal. Because Hui Lin did not object

to this upward departure at his sentencing hearing, we review his

arguments on this issue only for plain error. See United States v.

Forbes, 16 F.3d 1294, 1300 (1st Cir. 1994).

A. Hui Lin

Hui Lin argues that there has been no showing that he

anticipated or should have anticipated the actions of the crew or the

conditions aboard the XING DA.3 He argues that he was not on the ship

3This position is at odds with the position Hui Lin's counsel took at
sentencing, where he argued first that "it was foreseeable that much of
this conduct could happen aboard the vessel," and second that Hui Lin
and Yiu Ming Kwan did not know that the crew members were "going to go
crazy and do the kind of stuff they did," but that they "should have
foreseen it."

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and did not communicate with the ship during the voyage. He also

argues that there was no evidence that he ever ordered or encouraged

the use of force or the deprivations suffered by the passengers.

Hui Lin's argument is unavailing, especially under the

applicable "plain error" standard. The facts (even if true) that he

was not on the ship, did not communicate with the ship, and did not

order the actions or conditions aboard the ship, do not require the

conclusion that Hui Lin could not have known about or at least foreseen

the crew's actions or the ship's conditions. Several factors noted by

the government support the opposite conclusion. First, Hui Lin's

planning and negotiation demonstrated that he was clearly in charge of

the stateside portion of the smuggling conspiracy. Second, his concern

with finances during the negotiations supports the inference that he

understood the importance of frugality with respect to all aspects of

the conspiracy. Third, Hui Lin knew of the inadequacy of the

offloading vessel, but arranged for the aliens to be transported into

the United States on that vessel anyway. When it was pointed out that

the conditions aboard the fishing vessel would be less than ideal, Hui

Lin stated that the aliens would simply have to sit below deck and stay

awake for two days. Fourth, Hui Lin knew that seven or eight enforcers

would control the aliens on both the XING DA and the offloading vessel.

We agree with the government that there was little need to provide for

enforcers on such a voyage unless the negotiating appellants knew that

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the conditions were likely to provoke unrest. Finally, Hui Lin was

present when Nai Fook Li told Agent Rendon that the offloading vessel

need not have enough life jackets for the passengers.

From these facts, the district court could properly have

found that Hui Lin either knew of or could have foreseen the crew's

actions or the dangerous and inhumane conditions aboard the XING DA.

Even if we assume that Hui Lin did not have full knowledge of the

manner in which the aliens would be treated, the conversations with the

undercover agents demonstrate that he could have and should have

foreseen many of the conditions, deprivations, and abuses suffered by

the unfortunate passengers. Thus, the upward departure was not plain

error.

B. Ju Lin

Ju Lin offers the weakest argument on this issue. He

contends that it was not shown by a preponderance of the evidence that

he controlled or caused the inhumane conditions. We note first that

such direct control or causation of the conditions is not required. As

discussed above, Ju Lin is responsible for the conditions created by

his fellow co-conspirators so long as those conditions were reasonably

foreseeable to him. See U.S.S.G. § 1B1.3(a)(1)(B).4

Although Ju Lin is correct that there is no evidence that he

caused or controlled the food and water deprivations or unsanitary

4See note 2, supra.

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conditions on the XING DA, there was sufficient evidence to support the

inference that Ju Lin could have foreseen that such conditions would

exist. The XING DA was at sea for approximately fifty-four days.

When, upon boarding the XING DA, Coast Guard Officer Patrick Hilbert

asked who was in charge, Ju Lin identified himself as the master of the

ship. Indeed, Ju Lin was called "the boss" by others on the ship. It

is quite unlikely that the ship's “boss” would not know of or suspect

the unsanitary conditions, safety violations, food deprivations, or

incidents of violence during its nearly two-month-long voyage.

In any event, there was also compelling evidence of Ju Lin's

direct participation in abusing the emigrants. The court heard

testimony that Ju Lin personally beat one passenger with a thick wooden

stick and personally kicked another as he lay on the deck. This

evidence alone is sufficient to support a finding that Ju Lin's offense

involved dangerous or inhumane treatment, bodily injury, and possession

of a dangerous weapon. Moreover, during both beatings, another crew

member told the victim that he was being beaten for stealing food or

water. This strongly suggests that Ju Lin knew of the deprivations of

food and water that were occurring. For these reasons, we reject Ju

Lin's claims regarding the upward departure.

C. Nai Fook Li and Yiu Ming Kwan

Like Hui Lin, the other land-based appellants, Li and Kwan,

claim that the district court erred in finding that the actions of the

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crew and the conditions aboard the XING DA were reasonably foreseeable

to them. Again, we review those findings for clear error. See

Mocciola, 891 F.2d at 16.

Li and Kwan claim that the mere request for a departure is

inconsistent with the notion that they could reasonably have foreseen

what took place aboard the XING DA. They argue first that it is the

very atypicality of such conditions that allows for an upward departure

by taking this case outside the "heartland" of § 2L1.1, and second that

these atypical conditions would not be foreseen by a defendant simply

because he or she committed the crime of alien smuggling. Li and Kwan

claim that they served only as "go betweens" and translators for Hui

Lin and Agents Rendon and Cox. They argue that this role provided them

only with the information expressed during the stateside negotiations,

which was not sufficient to attribute to them the knowledge or

foresight of what would occur during the voyage.

The government responds with several arguments. First, it

contends that Li and Kwan were more than just interpreters. According

to Agent Rendon, it was Kwan alone who initially approached him about

bringing approximately 100 aliens into the United States. Kwan later

introduced Agent Rendon to Hui Lin, participated in all meetings with

the agents, and negotiated the price with the agents. During the taped

negotiations, Kwan spoke of their previous experience in smuggling

aliens. After the XING DA left China, Kwan also provided Agent Rendon

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with updates regarding the voyage. Nai Fook Li attended all but one of

the meetings with the agents. At one of the meetings, Li told the

agents that the aliens would be kept together in the United States

until appellants paid the balance due them for their offloading

services. Li gave Agent Cox the XING DA's current coordinates and

delivered to Rendon $5000 of the down payment. We thus agree with the

district court that Li and Kwan participated in the substance of the

discussions and were more than mere interpreters.

The government also argues that Li and Kwan had reason to

know that the conditions aboard the XING DA would be grim. It stresses

that the entire enterprise was profit driven, and that the

coconspirators were therefore likely to limit the provisions and

amenities provided to the passengers. As to the offloading vessel,

Kwan inspected it himself, so he knew that approximately 100 aliens

would be ferried into the United States in the hold of a tiny fishing

boat with inadequate facilities. Both Li and Kwan were present when

Hui Lin stated that the aliens would have to cope with the lack of

space by foregoing sleep for two days. Li and Kwan were also present

when Hui Lin discussed the seven or eight enforcers who would control

the aliens aboard both vessels. On September 23, 1996, Li himself told

the agents that eight men would be on board the ship to control the

passengers. Li and Kwan were also present when Agent Rendon was told

that the aliens would board the fishing boat by jumping from the XING

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DA. Later, Agent Rendon informed Hui Lin, Nai Fook Li, and Yiu Ming

Kwan that there would not be enough life jackets for the passengers.

On September 23, 1996, Kwan told Rendon that only a "little bit of

food" was necessary on the offloading boat.

After reviewing this evidence, we cannot fault the district

court's conclusion that the actions of the crew and the conditions of

the ship were either known by or foreseeable to Li and Kwan, and we

certainly do not find this conclusion to be clearly erroneous. The

district court could properly have inferred from their participation in

the negotiations with Rendon and his associates that Li and Kwan knew

full well what the other members of the conspiracy were planning, and

could well have foreseen that some level of inhumane treatment,

dangerous conditions, or bodily injury would attend the trip.

Therefore, the upward departures were appropriate.

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 D. Comparative Degree of Departures Given to Nai Fook Li
and Yiu Ming Kwan

Closely related to Li and Kwan's argument that they should

not have been given this upward departure is their contention that the

district court erred in applying a harsher upward departure to them

than was applied to their five more culpable co-defendants. We review

the extent of an upward departure for abuse of discretion, using the

yardstick of "reasonableness" to determine whether the degree of

departure was appropriate. See Brewster, 127 F.3d at 30-31.

Li and Kwan complain that the "inexplicably more severe

degree of upward departure" imposed on them is in conflict with

established law and the purposes of the sentencing guidelines. They

argue that the grounds for departure for each of the seven co-

defendants were identical and that although they were the defendants

least culpable with respect to these inhumane conditions, they received

a disproportionately harsh degree of upward departure. Li and Kwan

each received upward departures to sentences of 72 months,5 which

correspond to offense levels of 26 or 27. From this, Li and Kwan

subtract their total offense level of 14 to determine that they

received an upward departure equivalent to 12-13 offense levels. By

contrast, Li and Kwan claim that the other defendants received upward

5Kwan was actually sentenced to only 36 months, after receiving a §
5K1.1 downward departure for substantial cooperation with the
government.

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departures equivalent to enhancements of only 9-10 levels (Hui Lin and

Mao Bing Mu); 10-11 levels (Ju Lin and Sang Li); and 11-12 levels (Ben

Lin). Li and Kwan contend that, at worst, the conditions and treatment

of the aliens were only reasonably foreseeable to them, and that there

was no evidence that they had any hand in creating those conditions or

participating in that treatment. Therefore, they argue that, if

anything, they should have received lesser degrees of departure, rather

than the greater comparative departure they claim to have received.

However, this analysis is flawed because appellants

mistakenly utilize their total offense levels as the starting point for

calculating the extent of their departures. Under 8 U.S.C. §

1324(a)(2)(B)(ii), the mandatory minimum sentence for a first or second

offense of bringing in an alien for the purpose of private financial

gain is three years. Appellants agree that this mandatory minimum

applies to their convictions. Sentencing Guideline § 5G1.1(b) provides

that, where a statutorily required minimum sentence is greater than the

maximum of the applicable guideline range, the mandatory minimum

sentence shall be the guideline sentence. See U.S.S.G § 5G1.1(b). The

Commentary to that section gives an example: if the applicable

guideline range is 41-51 months and there is a mandatory minimum of 60

months, the required sentence is 60 months and any sentence greater

than that would be a guideline departure. This makes it clear that the

proper starting point from which a departure is to be subtracted or to

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which it must be added is the greater of the guideline range or the

mandatory minimum. Cf. United States v. Hayes, 5 F.3d 292, 295 (7th

Cir. 1993) (holding that the district court did not act improperly in

departing downward from a starting point of the mandatory minimum).

It is evident that the district court calculated appellants'

sentences in this proper manner. It first determined that the total

offense level for Li and Kwan was 14, which carries a guideline range

of 15-21 months for defendants in Criminal History Category I. Because

this range is obviously lower than the applicable 36-month mandatory

minimum, the court properly adjusted the guideline range to a "range"

of 36 to 36 months before applying any upward or downward departures.

It is from this "range" that Li and Kwan's upward departures must be

measured.

When the upward departures given to Li and Kwan are

calculated from the proper starting point -- the 36-month mandatory

minimum -- it becomes evident that Li and Kwan actually received

smaller upward departures than any other appellant. A 36-month

sentence corresponds to an offense level of 19 or 20, based on Criminal

History Category I. Therefore, Li and Kwan received an upward

departure of seven levels. By comparison, Ju and Hui Lin received

departures of eight levels, Mao Bing Mu received a departure of 9-10

levels, Sang Li received a departure of 10-11 levels, and Ben Lin

received a departure of 11-12 levels. These calculations better

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reflect the magnitude of the departures and clearly defeat Li and

Kwan's claim that they received "inexplicably more severe" departures

than their co-defendants.

Nevertheless, Li and Kwan argue that, in imposing upward

departures on identical grounds, the court must maintain the vertical

separation of sentences that the guidelines calculations yield. In a

context such as this one, in which statutory mandatory minimum

sentences compress much of that vertical separation, appellants'

argument is essentially that the court should re-create much of that

vertical separation in imposing the upward departures. This would

require granting appellants a substantially less severe upward

departure than their co-defendants, despite having the same basis for

the departure. Doing so would provide the co-defendants with exactly

the same "disproportionality" argument appellants raise here. For

obvious reasons, this cannot be correct.

IV. Six-Level Adjustment to Appellants' Offense Level Because
the Offense Involved the Smuggling of 100 or More Aliens

All seven appellants argue that the district court erred in

imposing a six-level increase to their offense levels because more than

100 aliens were involved in their crime. Appellants argue that the

district court should have instead imposed a four-level increase

because 25-99 aliens were involved. We review for clear error the

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district court's factual finding at sentencing that more than 100

aliens were involved. See Mocciola, 891 F.2d at 16.

The applicable version of Guideline § 2L1.1(b)(2) states that

if the offense involved the "smuggling, transporting, or harboring" of

100 or more unlawful aliens, the sentencing court should enhance the

defendant's offense level by six levels. U.S.S.G. § 2L1.1(b)(2)(C).

Application Note 1 to that section states that in arriving at the

number of aliens the defendant may not be included.

Appellants argue that several of the passengers other than

the four shipboard defendants can properly be characterized as

participants in the conspiracy and therefore should be excluded.

However, they cite no authority for the proposition that co-

conspirators who are not co-defendants are to be excluded from the

calculation.6 Instead, appellants argue that the status of the aliens

as co-conspirators means that they were not smuggled into the United

States "for profit."

The problem with appellants' argument is that

§ 2L1.1(b)(2)(C) does not require that each of the 100 or more aliens

be smuggled "for profit." The "for profit" definition of Application

Note 1 refers to subsection 2L1.1(b)(1), which provides a three-level

6In fact, the government offers a strong argument that even co-
defendants need not be excluded from the calculation. Application Note
1 to Section 2L1.1(b) states only that the number of aliens "does not
include the defendant"; it does not state that all co-defendants must
also be excluded.

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decrease if the offense is committed other than "for profit."

Subsection 2L1.1(b)(2)(C), the applicable subsection here, prescribes

a six-level increase "if the offense involved the smuggling,

transporting, or harboring of [100] or more unlawful aliens," and makes

no mention of profit. This offense involved the transportation and

planned offloading in the United States of 109 aliens, only four of

whom were defendants in this case. Whether each of the remaining 105

aliens was smuggled in exchange for payment, work aboard the ship, or

nothing at all is irrelevant for purposes of this particular

subsection. Therefore, the court did not err in imposing the six-level

increase under § 2L1.1(b)(2)(C).

V. Denial of Three-Level Decrease For Offenses Committed "Other
Than For Profit"

Appellants Mao Bing Mu, Sang Li, and Ben Lin argue that the

district court erred in denying them a three-level decrease under

Guideline § 2L1.1(b)(1), for defendants who "commit[] the offense other

than for profit." They say that there was no evidence that any of them

was to be paid from the profits of the smuggling operation, and that in

fact, their only form of compensation was free passage to the United

States. Application Note 1 to § 2L1.1 states that a defendant who

committed the offense solely in return for his own transportation did

not commit the offense "for profit."

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 The district court found by a preponderance of the evidence

that each of the three defendants was motivated by (1) expectations of

monetary gains, and (2) hopes of entering and remaining inside the

United States. The court found that the defendants were knowing

participants in a conspiracy that was expected to yield profits to some

members of the conspiracy. The court also found that remaining inside

the United States has monetary value because, among other things, the

appellants would avoid the payment of fees and expenses incident to a

legal entry. The government agrees with appellants that if the

evidence demonstrated only that the defendants worked on the ship in

exchange for free passage, they would have been entitled to the three-

level decrease. However, the court based its decision not to grant the

decrease on an "expectation of payment" after their arrival in the

United States.

Mu, Li, and Ben Lin argue that the district court engaged in

pure speculation when it found that they had an expectation of being

paid out of the conspiracy's profits. The government concedes that it

offered no specific evidence that Mu, Li, or Ben Lin had an expectation

of being paid by the conspiracy, but notes that it was appellants'

burden to establish that the downward adjustment was warranted. See

United States v. Trinidad-López, 979 F.2d 249, 251 (1st Cir. 1992)

("The validity of any claim of entitlement to a downward adjustment in

the base offense level must be demonstrated by the defendant by a

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preponderance of the evidence. The government is not required to

establish defendant's disentitlement.") (citations omitted). The

government argues that Mu and Li offered no evidence that they

participated in the smuggling venture solely in return for their free

passage to the United States and that Ben Lin offered only a self-

serving declaration that he would receive free passage in exchange for

piloting the boat. Thus, the government argues that the only evidence

before the district court on the "for profit" issue was the high level

of responsibility accorded to Mu, Li, and Ben Lin. The government

claims that the district court properly determined that the high level

of responsibility given them was indicative of their status as valued

members of the conspiracy who would be compensated and was inconsistent

with the theory that they were merely working for free passage to the

United States.

This is a close question. While we might not entirely agree

with the inference of expectation of payment that the district court

drew from the level of responsibility shouldered by Mu, Li, and Ben

Lin, we do not find the court's decision to deny the downward

adjustment to be clear error. Appellants had the burden of

establishing by a preponderance of the evidence that they were due to

receive only free passage to the United States in exchange for their

services, and the district court found that this burden was not met.

None of the three appellants offered testimony on this subject, and

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only Ben Lin offered an affidavit stating that he expected only free

passage. After viewing and hearing all of the evidence, the district

court simply did not believe that Mu, Li, and Ben Lin had no

expectation of payment. As the trier of fact for sentencing purposes,

the district court had a better sense of the importance of Mu, Li, and

Ben Lin to the conspiracy than we can glean from the record.

Accordingly, we do not disturb the court's finding that Mu, Li, and Ben

Lin failed to carry their burden of demonstrating that they committed

the offense "other than for profit."

VI. Upward Departure to Appellant Hui Lin's Sentence Based On
the Finding That He Was a Leader or Organizer of the
Criminal Activity

Finally, Hui Lin argues that the district court improperly

applied a four-level increase to his offense level, based upon his role

in the offense as a "leader" or "organizer." Sentencing Guideline §

3B1.1(a) prescribes a four-level increase in a defendant's offense

level if he "was an organizer or leader of a criminal activity that

involved five or more participants or was otherwise extensive."

U.S.S.G. § 3B1.1(a). In this context, Hui Lin essentially repeats his

argument that he could not have foreseen the treatment of the aliens or

the conditions aboard the XING DA -- an argument that we have already

rejected.

It is undisputed that this venture involved five or more

participants. Evidence was presented that Hui Lin inspected and

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approved of Agent Rendon's boat during negotiations; that Hui Lin

agreed to pay Agent Rendon $500,000 for use of the boat; that Hui Lin

"did most of the talking" during price negotiations; and that Hui Lin

gave Agent Rendon over $30,000 as a deposit. This evidence was

sufficient to demonstrate that Hui Lin was in charge of the stateside

portion of the venture, which was more than sufficient to support a

finding that he was a leader or organizer of the criminal activity.

Additionally, we note that Hui Lin was not affected by the

district court's decision to apply the "role in the offense"

enhancement. Hui Lin's guideline range, after the "role in the

offense" enhancement was applied, was only 27-33 months and had to be

raised to the statutory minimum of 36 months. If the role in the

offense enhancement had not been applied, Hui Lin's guideline range

would have been only 15-21 months, which the court would still have had

to raise to the statutory minimum of 36 months. As a result, even if

the district court had erred in applying the role enhancement, Hui Lin

would not have been harmed in any way by the error. This is especially

important because Hui Lin did not object at sentencing to the role

enhancement. Consequently, we review only for a plain error affecting

the defendant's substantial rights. See United States v. Carrozza, 4

F.3d 70, 87 (1st Cir. 1993) (citing United States v. Olano, 507 U.S.

725 (1993)), cert. denied, 511 U.S. 1069 (1994). Because Hui Lin

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demonstrates neither such an error nor such an effect, this claim

fails.

CONCLUSION

Based on the foregoing, we AFFIRM the judgment of the

district court in all respects with regard to all appellants.

Separate opinion follows.

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 Torruella, Chief Judge (Concurring in part, dissenting in

part). I concur in the panel's decision as to appellants Hui Lin, Nai

Fook Li, Yiu Ming Kwan, and Ju Lin. As to appellants Mao Bing Mu, Sang

Li, and Ben Lin, however, I respectfully dissent, for the reasons set

forth in my dissent from the opinion of the en banc Court.

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