USCA1 Opinion
November 6, 1992 UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 92-1359
No. 92-1359
UNITED STATES OF AMERICA,
UNITED STATES OF AMERICA,
Appellee,
Appellee,
v.
v.
ANTONIO TRINIDAD-LOPEZ,
ANTONIO TRINIDAD-LOPEZ,
Defendant, Appellant.
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fust , U.S. District Judge]
[Hon. Jose Antonio Fust , U.S. District Judge]
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Before
Before
Breyer, Chief Judge,
Breyer, Chief Judge,
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Coffin, Senior Circuit Judge,
Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
and Cyr, Circuit Judge.
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Miguel A.A. Nogueras-Castro, Assistant Federal Public Defender,
Miguel A.A. Nogueras-Castro, Assistant Federal Public Defender,
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with whom Benicio Sanchez Rivera, Federal Public Defender, was on
with whom Benicio Sanchez Rivera, Federal Public Defender, was on
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brief for appellant.
brief for appellant.
Jos A. Quiles Espinosa, Senior Litigation Counsel, with whom
Jos A. Quiles Espinosa, Senior Litigation Counsel, with whom
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Daniel F. Lopez Romo, United States Attorney, and Hernan R os, Jr.,
Daniel F. Lopez Romo, United States Attorney, and Hernan R os, Jr.,
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Assistant United States Attorney, were on brief for appellee.
Assistant United States Attorney, were on brief for appellee.
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CYR, Circuit Judge. Appellant Antonio Trinidad-Lopez
CYR, Circuit Judge.
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pled guilty to one count of a two-count indictment charging him
with attempting to bring aliens into the United States in
violation of 8 U.S.C. 1324(a)(1)(A)1 and was sentenced to
twenty-four months in prison and three years on supervised
release. Appellant challenges the district court's application
of the sentencing guidelines in two particulars, contending that
the court erred in denying a three level reduction in the base
offense level pursuant to U.S.S.G. 2L1.1(b)(1) and in departing
above the applicable guideline sentencing range ("GSR"). We
affirm.
I
I
BACKGROUND
BACKGROUND
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On October 27, 1991, the United States Border Patrol
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1Section 1324(a)(1)(A) provides:
(1) Any person who
(A) knowing that a person is an alien,
brings to or attempts to bring to the United
States in any manner whatsoever such person
at a place other than a designated port of
entry . . ., regardless of whether such alien
has received prior official authorization to
come to, enter, or reside in the United
States and regardless of any future official
action which may be taken with respect to
such alien, . . . shall be fined . . . or
imprisoned not more than five years, or both,
for each alien in respect to whom any
violation of this paragraph occurs.
8 U.S.C. 1324(a)(1)(A).
intercepted a wooden yawl off the coast of Rinc n, Puerto Rico, a
place other than a designated port of entry for aliens into the
United States. On board the vessel were 104 aliens from the
Dominican Republic. The yawl, which was approximately thirty-
five feet in length, contained no food, life jackets,
navigational equipment, or charts; it fell apart shortly after it
was intercepted. Appellant was arrested and identified as the
master of the vessel. Ultimately, he was indicted and pled
guilty to count one of the indictment; count two was dismissed
pursuant to a plea agreement.
At sentencing, appellant objected to two statements of
fact contained in the presentence report ("PSR"): that he was a
captain for the "Lolo" organization and that he had brought
hundreds or thousands of illegal aliens to Puerto Rico in the
past.2 A special agent of the Immigration and Naturalization
Service ("INS") testified that, as part of an ongoing
investigation of alien smuggling, the INS was developing an
organization chart of the Lolo organization based on information
obtained from its informants and members of the organization who
had been arrested. The INS agent identified appellant, known by
the nickname "Cubian," as one of the main boat captains for the
Lolo organization. According to the agent, Lolo typically
receives payment directly from the aliens; the organization pays
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2According to the testimony of an Immigration and
Naturalization Service agent, the "Lolo Smuggling Organization,"
also known as the "Nunez Smuggling Organization," conducts one of
the largest alien smuggling operations in the Dominican Republic.
4
the captains for each trip. The agent testified that appellant
had been arrested earlier in the year for transporting ninety-
three illegal Dominican aliens to the island of Desecheo, Puerto
Rico, but was never indicted because none of the aliens would
testify against him.
The district court based appellant's sentence on the
testimony of the INS agent and the information in the PSR. Under
U.S.S.G. 2L1.1(a)(2), offenses involving smuggling,
transporting, or harboring illegal aliens, see 8 U.S.C.
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1324(a)(1)(A), are assigned a base offense level of nine. The
PSR recommended a three level reduction pursuant to U.S.S.G.
2L1.1(b)(1) because the probation officer found no evidence
that the offense was committed for profit. The court declined to
allow the three level reduction, however, finding instead that
"money was involved in this alien-smuggling operation and that
the master of the smuggling boat, the [appellant], did not work
for free." The court increased the base offense level by two
levels pursuant to U.S.S.G. 3B1.3 because appellant, as captain
of the vessel, brought to the illegal enterprise special skills
necessary to its execution. The court granted a two level
reduction for acceptance of responsibility pursuant to U.S.S.G.
3E1.1(a). Thus, an adjusted offense level of nine, combined
with a category I criminal history, yielded a 4-to-10 month GSR.
The court further determined, however, that an upward departure
was warranted and sentenced appellant to twenty-four months in
prison, three years of supervised release, and a special monetary
5
assessment of $50.
6
II
II
DISCUSSION
DISCUSSION
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A. U.S.S.G. 2L1.1(b)(1)
A. U.S.S.G. 2L1.1(b)(1)
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Appellant argues that the district court erred in
denying 2a downward adjustment in the base offense level pursuant
to U.S.S.G. 2L1.1(b)(1), which provides for a decrease of three
levels if the defendant smuggled, transported, or harbored an
unlawful alien other than for profit. Application Note 1
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explains that "'[f]or profit' means for financial gain or
commercial advantage, but . . . does not include a defendant who
commits the offense solely in return for his own entry or
transportation." Appellant argues that he is entitled to the
three level reduction because he did not charge the aliens for
the trip and there was no evidence that he was paid by the "Lolo"
organization; that, on the contrary, he piloted the vessel solely
in return for his own transportation, and that of his wife.
Appellant contends that the court improperly relied on
allegations by an "unreliable confidential informant" in finding
that the Lolo organization paid him for the journey.
The trial court's application of the sentencing guide-
lines to the facts is reviewed for "clear error," United States
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v. Camuti, 950 F.2d 72, 74 (1st Cir. 1991); United States v.
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Preakos, 907 F.2d 7, 8 (1st Cir. 1990); United States v. Wright,
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873 F.2d 437 (1st Cir. 1989), which entails due respect for the
trial court's superior opportunity to judge the credibility of
the witnesses, as well as "due deference to [its] application of
7
the guidelines to the facts." 18 U.S.C. 3742(e).
The validity of any claim of entitlement to a downward
adjustment in the base offense level must be demonstrated by the
defendant, United States v. Ortiz, 966 F.2d 707, 717 (1st Cir.
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1992); United States v. Bradley, 917 F.2d 601, 606 (1st Cir.
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1990); United States v. Ocasio, 914 F.2d 330, 332 (1st Cir.
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1990), by a preponderance of the evidence. Cf. United States v.
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Corcimiglia, 967 F.2d 724, 726 (1st Cir. 1992); United States v.
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David, 940 F.2d 722, 739 (1st Cir. 1991) (preponderance of
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evidence standard applicable to issues of fact relating to
sentencing), cert. denied, 112 S. Ct. 605 (1991) and cert.
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denied, 112 S. Ct. 908 (1992) and cert. denied, 112 S. Ct. 1298
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(1992) and cert. denied, 112 S. Ct. 2301 (1992). The government
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is not required to establish defendant's disentitlement, as
appellant assumes.
Appellant offered no evidence that would support a
downward adjustment. In fact, in his attempt to convince the
court that he accepted responsibility for the offense, appellant
admitted to three such trips and stated, "I have done it for
money." Moreover, the INS agent testified that it is the es-
tablished practice of the Lolo organization to collect payment
directly from the alien passengers and to pay the captain for
each trip. According to the agent, an ongoing INS investigation
revealed that the appellant was one of the main captains for the
Lolo organization and that he had been apprehended and arrested
under very similar illegal circumstances on an earlier occasion.
8
We cannot conclude that the court committed clear error in
crediting competent testimony from official investigative sources
concerning Lolo organization practice, as to which no objection
was asserted at sentencing and appellant produced no
countervailing evidence. Since appellant did not establish the
grounds for a downward adjustment, the refusal to allow the three
level reduction pursuant to U.S.S.G. 2L1.1(b)(1) did not
constitute error.
2. Upward Departure
2. Upward Departure
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Appellant next challenges the upward departure from the
GSR, which we review under the tripartite framework established
in United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir.
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1989), cert. denied, 493 U.S. 862 (1989). See, e.g., United
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States v. Figaro, 935 F.2d 4, 7 (1st Cir. 1991); United States v.
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Reyes, 927 F.2d 48, 51 (1st Cir. 1991); United States v. Trinidad
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de la Rosa, 916 F.2d 27, 29-30 (1st Cir. 1990).
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a. Step One: Unusual Circumstances
a. Step One: Unusual Circumstances
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First, the determination that the relevant
circumstances were unusual enough to warrant a departure is
subject to de novo review. Diaz-Villafane, 874 F.2d at 49. See
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also Figaro, 935 F.2d at 6; Reyes, 927 F.2d at 52. The
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sentencing court based its departure on three factors: "the
large number of aliens involved," "the dangerousness of the
journey," and the finding that appellant's criminal history
9
category underrepresented the magnitude of his criminal conduct
in light of a prior arrest for similar conduct.3 Application
note 8 to U.S.S.G. 2L1.1 plainly states that "[t]he Commission
has not considered offenses involving large numbers of aliens or
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dangerous or inhumane treatment. An upward departure should be
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considered in those circumstances." (Emphasis added.) Thus,
"[t]his directive effectively forecloses further inquiry into
step one of the Diaz-Villafane analysis" once the sentencing
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3Appellant also argues that the district court improperly
relied on "compounding social economic problems in the Dominican
Republic." Although the sentencing judge alluded to social and
economic problems in the Dominican Republic, we do not share
appellant's view that the challenged departure was made to depend
on these observations, which were carefully distinguished from
the illegality and dangerousness of appellant's conduct.
Although the court acknowledged the plight of illegal aliens
desiring to enter the United States, the court emphasized that
this did not mitigate the seriousness of appellant's offense. As
the court stated in its Opinion and Order:
While we can sympathize with the plight of those who
might wish to enter our boundaries to seek a better
life, we do not find the same kind of compassion for
those who participate in the exploitation of others and
who, for profit, transport these aliens under
conditions that in the end create the real possibility
of loss of life, not to say the creation of other
social problems inherent to this kind of operation.
Moreover, the court did not rely on socio-economic conditions in
the Dominican Republic in recording its findings and conclusions
on the upward departure:
Specifically, we find that the departure is warranted
based on the actual commission of the offense that led
to the present indictment, based upon both the large
number of aliens involved and the dangerousness of the
voyage. Moreover, [appellant's] prior May 15, 1991
arrest after he landed 93 aliens in Desecheo Island,
convinces us that his criminal history category of I
underrepresents the magnitude of this defendant's
criminal actions, another factor that must be
considered by this court in setting the sentence.
10
court invokes any listed circumstance as a ground for departure.
Reyes, 927 F.2d at 52; see also Trinidad de la Rosa, 916 F.2d at
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30. Therefore, the first two grounds identified by the district
court must be accepted as sufficiently unusual to warrant its
consideration of a departure.
Although appellant contends that the third ground
relied on by the sentencing court, the prior arrest, was
improper, the sentencing guidelines provide otherwise.
If reliable information indicates that the
criminal history category does not adequately
reflect the seriousness of the defendant's
. . . past criminal conduct . . ., the court
may consider imposing a sentence departing
from the otherwise applicable guideline
range. Such information may include . . .
information concerning . . . prior similar
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adult criminal conduct not resulting in a
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criminal conviction.
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U.S.S.G. 4A1.3, p.s. (emphasis added). Thus, U.S.S.G. 4A1.3
expressly permits the sentencing court to consider a departure
where the criminal history category does not adequately reflect
the seriousness of the defendant's prior criminal history, as
shown by "reliable information," including similar adult conduct
which did not result in a conviction.
b. Step 2: Factual Undergirding
b. Step 2: Factual Undergirding
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Under the second step in the Diaz-Villafane analysis,
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we review for clear error all findings of fact material to the
challenged departure. Figaro, 935 F.2d at 6. See Diaz-
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Villafane, 874 F.2d at 49. The evidence relating to the first
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11
two grounds for departure identified by the court, the "large
number of aliens" and the "dangerousness of the journey," is not
in dispute. Thus, the district court did exactly as invited by
the Commission, see U.S.S.G. 2L1.1, comment. (n.8), as there
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can be no question that the transportation of 104 aliens through
the Mona passage in a thirty-five foot yawl designed to carry no
more than fifteen passengers, without food, life jackets,
navigational equipment, or charts, constitutes an offense
involving a large number of aliens and dangerous and inhumane
treatment as contemplated by the guideline, see id.4
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The evidence appellant's prior arrest supporting
the third ground for departure, see U.S.S.G. 4A1.3, p.s., is
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not contested either. Appellant does not deny that he was
arrested on May 15, 1991, after landing ninety-three illegal
aliens on Desecheo Island, Puerto Rico. Nor does he challenge
the reliability of the information relating to the details of the
incident. The same INS agent was the source of this information,
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4We have held that 50 passengers are enough to satisfy the
"large number" requirement in application note 8, Trinidad de la
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Rosa, 916 F.2d at 30, and that the court may take judicial notice
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that carrying 54 people in a 34-foot yawl creates a dangerous
condition. Id. at 30. See also United States v. Diaz-Bastardo,
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929 F.2d 798, 799 (1st Cir. 1991). The dangerousness inherent in
crowding twice as many people into such a yawl is
incontrovertible, as appellant concedes.
Appellant nonetheless argues that he should not be held
accountable for any dangerousness, because the aliens were not
forced to make the journey and he had no control over, nor did he
contribute to, the dangerous conditions aboard the vessel.
Appellant does not deny that he was the master of the yawl,
however. Thus, he is ill-positioned to argue that he is not
partially responsible for exposing the passengers to the dangers
of the Mona passage in such a vessel.
12
as he had been the officer in charge of the May, 1991 investiga-
tion as well. The agent verified appellant's arrest based on a
Coast Guard report and testified that appellant was one of three
individuals apprehended by the Coast Guard immediately after the
ninety-three illegal aliens were landed on Desecheo Island.
Although the record contains no information about the conditions
aboard the vessel used for the May, 1991 passage, it clearly
involved the illegal smuggling of a large number of aliens into
the United States. Since the court grounded its departure
decision on reliable information sufficient to demonstrate that
appellant previously had engaged in similar adult criminal
conduct that did not result in a criminal conviction, the
evidentiary basis for its U.S.S.G. 4A1.3 departure decision was
sufficient.
c. Step 3: Reasonableness
c. Step 3: Reasonableness
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Under the third prong of the Diaz-Villafane test, we
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weigh whether the degree of the departure was reasonable in the
circumstances, according considerable deference to the district
court decision. Diaz-Villafane, 874 F.2d at 49-50; see also
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Figaro, 935 F.2d at 6. The twenty-four month sentence imposed by
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the district court is more than twice that allowed at the upper
limit of the 4-to-10 month GSR. We recognize, nonetheless, that
fortuity was the only impediment to tragedy for the 104 pas-
sengers who were traveling without life jackets in an egregiously
unsafe and overburdened wooden boat through the treacherous
13
waters of the Mona passage. Moreover, the district court was
faced with an underrepresentative offense level as well as an
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underrepresentative criminal history category. Appellant's
criminal conduct in connection with the offense of conviction
contributed to the endangerment of more than 100 passengers only
months after having engaged in similar illegal conduct involving
ninety-three passengers. In these circumstances, the degree of
departure cannot be considered unreasonable. See, e.g., id., 935
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F.2d at 8-9 (upholding departure, under similar circumstances,
from 0-6 month GSR to 18 months); Reyes, 927 F.2d at 52-53
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(upholding departure from 8-14 month GSR to 36 months).
Affirmed.
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14