USCA1 Opinion
November 5, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2306
UNITED STATES,
Appellee,
v.
HUVAR VALENCIA,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Torruella and Selya, Circuit Judges.
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Bruce A. Jordan and Archer, Perry & Jordan, P.A., on brief
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for appellant.
Jay P. McCloskey, United States Attorney, and Margaret D.
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McGaughey, Assistant United States Attorney, on brief for
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appellee.
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Per Curiam. Appellant Huvar Valencia pled guilty
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to a two count indictment charging conspiracy to commit
offenses against the United States in violation of 18 U.S.C.
371, and attempted smuggling of aliens into the United
States in violation of 8 U.S.C. 1324(a)(1)(A). The objects
of the conspiracy were to travel and use telephone facilities
in interstate commerce with intent to commit a crime in
violation of 18 U.S.C. 1952(a)(2) and 1952(a)(3), to
attempt to bring aliens into the United States in violation
of 8 U.S.C. 1324(a)(1)(A), to transport firearms in
interstate commerce with intent to commit a felony in
violation of 18 U.S.C. 924(b), and to transfer a firearm
knowing it would be used to commit a crime of violence in
violation of 18 U.S.C. 924(h). In sentencing the
defendant, the district court upwardly departed from the
applicable guideline sentencing range (GSR) of four to ten
months and sentenced Valencia to a term of twenty-four
months. Valencia appeals from this sentence.
For the most part, the facts in this case are not
in dispute. According to the Pre-Sentence Report, Valencia
was a participant in a plot to break some members of the
Medellin cocaine cartel out of a Canadian prison and
transport them to the United States, from where they would be
flown to Colombia. Valencia's alleged role was to deliver
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vehicles and weapons1 from the United States to members of a
break-out team in Canada. Co-conspirators based in Canada,
and not the defendant, served time in Canadian prisons for
conduct related to this break-out plan, in addition to
receiving prison terms in the United States district court.2
The sole issue on appeal is whether the district court
departed upward to the extent that it did in an impermissible
attempt to achieve symmetry between Valencia's sentence and
the combined Canadian and United States sentences of his co-
conspirators.
The district court stated at sentencing that the
upward departure was rooted principally in U.S.S.G.
5K2.9.3 The court found 5K2.9 applicable as Valencia
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1. Although Valencia pled guilty to conspiracy to receiving
and transferring firearms, he denied at sentencing that he
was the person who actually delivered these weapons across
the border.
2. Co-conspirators received sixteen month sentences in the
United States district court and, it appears, received
twenty-four month sentences in Canadian courts (a total of
forty months in United States and Canadian sentences).
Valencia argues that he should have received, at most, a
sixteen month sentence in the district court and that the
only explanation for his twenty-four month sentence was an
attempt by the district court to achieve sentencing symmetry
between his term and his co-defendants' total terms.
3. Section 5K2.9 Criminal Purpose (Policy Statement)
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If the defendant committed the offense in order to
facilitate or conceal the commission of another
offense, the court may increase the sentence above
the guideline range to reflect the actual
seriousness of the defendant's conduct.
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committed his offenses in order to facilitate or conceal the
commission of another offense--the attempted prison breakout
of the Medellin cartel members. In addition, the court
stated that in deciding to depart upward, it considered the
fact that semi-automatic weapons were used, the disruption of
governmental function that would have resulted had the plan
to break into the Canadian prison been successful, and "the
nature of the unusual and extreme conduct given the analysis
of the Court in United States v. Johnson."4
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The upward departure was from Offense Level 9 to
Offense Level 17. The defendant's twenty-four month sentence
represented a 140% increase over the GSR's ceiling. In
explaining the extent of the upward departure, the district
court stated that it had considered the same factors it had
considered in deciding to depart upward. The court also
stated that it had departed upward to the level that it did
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4. In Johnson, 952 F.2d 565 (1st Cir. 1991), cert. denied,
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___ U.S. ___, 113 S. Ct. 58, 121 L. Ed. 2d 27 (1992),
defendants were convicted of conspiracy and substantive
offenses relating to their roles in terrorist activities
directed towards the British in Northern Ireland. On appeal,
we upheld as proper grounds for upward departure the
circumstances relied upon by the district court, including
"the potential for death to innocent people" and the
"extreme" amount of "planning and sophistication" in the
conspiracy. 952 F.2d at 583. The upward departure here is
warranted on the same grounds.
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based on the defendant's role in the undertaking and his
culpability.5
In United States v. Wogan, 938 F.2d 1446 (1st
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Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 441, 116 L. Ed.
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2d 460 (1991), we held that the district court erred, as a
matter of law, in basing a downward departure solely in an
effort to achieve sentencing parity between Wogan and his co-
defendant. In the instant case, the district court noted
from the bench that it was mindful of our decision in Wogan
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and specifically stated that it did not depart to maintain
any kind of equalization or symmetry between Valencia's
sentence and those of his co-defendants. The written
judgment stated, however, that the court "also took into
consideration the sentences of the co-defendants, including
the imposition of Canadian prison terms for like or similar
conduct." Valencia relied on this apparent conflict in
support of his contention that, contrary to the teaching of
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5. Defendant argues that the district court did not
specifically explain why it departed upward to Level 17. We
have previously stated that
when the court has provided a reasoned
justification for its decision to depart, and that
statement constitutes an adequate summary from
which an appellate tribunal can gauge the
reasonableness of the departure's extent, it has no
obligation to go further and attempt to quantify
the impact of each incremental factor on the
departure sentence.
United States v. Emery, 991 F.2d 907, 913 (1st Cir. 1993).
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Here, the court's articulated grounds for departing, and for
the extent of the departure, were adequate.
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Wogan, the district court departed to the extent that it did
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to achieve symmetry between his own sentence and those of co-
defendants. At the request of the government,
however, we remanded the case to the district court to
clarify the record. In response, the district court issued a
memorandum stating that the oral statements made by the court
at sentencing correctly reflect the basis of its sentencing
decision and that "[t]he sentences received by Mr. Valencia's
co-defendants were not considered by the court in departing
from the Guidelines or the extent of such departure." We
are satisfied that the district court's response on remand
disposes of Valencia's argument to the extent based on any
arguable conflict in statements made by the district court.
See also United States v. Villano, 816 F.2d 1448, 1450 (10th
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Cir. 1987) (en banc) ("It is a firmly established and settled
principle of federal criminal law that an orally pronounced
sentence controls over a judgment and commitment order when
the two conflict. This rule is recognized in virtually every
circuit.") (footnote omitted). Accordingly, the judgment is
affirmed. Loc. R. 27.1.
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