U.S. v. Lara

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 91-2733
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

YOLANDA C. LARA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________
(October 14, 1992)

Before KING, WILLIAMS, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Sentenced on a guilty plea for immigration-related violations,

Yolanda C. Lara appeals her sentence. Concluding that the district

court erred in applying the sentencing guidelines in one particu-

lar, we vacate and remand for resentencing.

I. Factual Background.

Following an investigation triggered by an anonymous tip, the

Immigration and Naturalization Service (INS) arrested and charged

Lara and her codefendant, Andres Ramos-Flores, with transporting

and harboring undocumented aliens. The typical scenario provided
for Lara and Ramos-Flores to transport aliens from Brownsville to

Houston, where they were hidden and detained while they contacted

relatives living in the United States who were to wire their "fees"

via Western Union to Lara and Ramos-Flores. These fees were

usually $400 per person.

The investigation included a surveillance of an apartment in

Houston where the aliens were housed. The surveillance team

observed Lara, Ramos-Flores, and three Hispanic females leave the

apartment and enter a vehicle registered to Lara. The INS agents

followed and then stopped the vehicle. The Hispanic females were

all undocumented; each stated that she had paid Lara and Ramos-

Flores $400 to smuggle her into the United States.

Lara admitted to transporting undocumented aliens from

Brownsville to Houston and to hiding them in her Houston apartment.

When a consent search was conducted of that apartment, the INS

agents found one female and three female undocumented aliens, a

.357 revolver and ammunition, and Western Union money transfer

forms. Lara directed the agents to a house on Johnson Street,

where more undocumented aliens were found. One of the aliens told

the agents that she and twelve others had been transported to

Houston by Lara and Ramos-Flores and that each had paid her $400

fee.

Lara pled guilty to a six-count indictment: Three counts

charged her with illegally concealing, harboring, or shielding from

detection transported aliens in the United States, and aiding and

abetting, in violation of 8 U.S.C. § 1324(a)(1)(C) and 18 U.S.C.

2
§ 2; three counts charged her with illegally transporting aliens

and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(B)

and 18 U.S.C. § 2. The government filed a notice of intention to

seek an enhancement of the sentence under 18 U.S.C. § 3147.1 The

district court ordered a presentence investigation report (PSI).

At the sentencing hearing, the court solicited objections to the

PSI's factual findings. The government presented none. Lara

requested the court to consider the credibility of one declarant in

assessing her statements; the court agreed to do so.

The district court then entertained objections to the PSI's

application of the sentencing guidelines. The government objected

to the recommendation that Lara's sentence not be enhanced. The

district court adopted the PSI's recommendation and refused to

enhance.

Lara objected to a number of factors cited as possible grounds

for an upward departure, including the large number (approximately

forty) of undocumented aliens involved; the extortive aspect of the

smuggling operation; the discharge of a firearm in the commission

of the offense; psychological harm to one of the undocumented

aliens; and enhancement by analogy to U.S.S.G. § 2J1.7. This last

suggestion was based upon the scenario that the Brownsville offense

was committed while Lara was on release for the instant charges and

in the sentencing on that offense, the government had failed to

seek enhancement under section 3147. The PSI suggested the

1
While on pretrial release, Lara was arrested on a second charge of
transporting undocumented aliens (the "Brownsville conviction"). She pled guilty
to the charge and was sentenced to a 131-day term of incarceration.

3
propriety of enhancement for the first offense by an upward

departure in such an instance. In addition, Lara objected to the

lack of recommendation in the PSI for a two-point reduction in her

offense level for acceptance of responsibility, as well as to the

increase in her criminal history category by virtue of the

Brownsville conviction.

After hearing these objections, the district court accepted

the calculations set forth in the PSI establishing an offense level

of 9 and a criminal history category of II, based upon a criminal

history score of 2, yielding a guidelines range of 6-12 months.

The court rejected Lara's request for a two-point reduction of the

offense level for acceptance of responsibility.

The district court then employed U.S.S.G. § 2B3.2 by analogy

to support an upward departure for the extortionate element of

Lara's offense and used section 2B3.2(b)(3)(A)(iii), also by

analogy, to support a departure for the firearm-related element.

The court also applied section 2J1.7 by analogy, despite having

earlier rejected the government's motion for an enhancement under

section 3147, to increase the offense level an additional three

points. The above departures raised the base offense level to 26,

which combined with the criminal history category of II to yield a

new range of 70-87 months.

Based upon that range, the court sentenced Lara to a term of

incarceration of 60 months on counts 1 through 6, with the first 27

months imposed for counts 2 through 6 to run consecutively with the

60-month term for count 1. The term of incarceration on all six

4
counts totaled 87 months.

II. Analysis.

Our review of Lara's challenge is controlled by Williams v.

United States, 112 S. Ct. 1112 (1992). We must remand on a showing

that the district court relied upon an invalid factor at sentenc-

ing, absent our finding that the error was harmless, i.e., that the

error did not affect the court's selection of the sentence imposed,

and that the sentence was reasonable. Id. at 1120-21. In

conducting our inquiry, we must accept the factual findings of the

district court unless clearly erroneous, but we review de novo the

application of the guidelines for errors of law. 18 U.S.C. §

3742(e); United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.),

cert. denied, 492 U.S. 924 (1989).

III. Departure by Analogy to Section 2B3.2.

A sentencing court has the power, under 18 U.S.C. § 3553(b),

to impose a sentence outside the range established by a proper

application of the guidelines, provided it finds "that there exists

an aggravating or mitigating circumstance of a kind, or to a

degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a

sentence different from that described." U.S.S.G. § 5K2.0 (citing

18 U.S.C. § 3553(b) (Supp. 1992)). Our determination on appeal

follows a two-pronged inquiry:

First, was the sentence imposed either in violation of
law or as a result of an incorrect application of the

5
 Guidelines? If so, a remand is required under
§ 3742(f)(1). If the court concludes that the departure
is not the result of an error in interpreting the
Guidelines, it should proceed to the second step: is the
resulting sentence an unreasonably high or low departure
from the relevant guideline range? If so, a remand is
required under § 3742(f)(2).[2]

Williams, 112 S. Ct. at 1120. We review findings of fact that

underlie the court's sentence under a clearly erroneous standard.

18 U.S.C. § 3742(e) (Supp. 1992); Mejia-Orosco, 867 F.2d at 221.

Applying the first prong of the inquiry, we find that the

departure based upon the extortive aspects of Lara's conduct was

imposed neither in violation of law nor as the result of an

incorrect application of the guidelines, which direct sentencing

courts to

treat each guideline as carving out a `heartland,' a set

2
18 U.S.C. § 3742(f) (Supp. 1992) provides as follows:
If the court of appeals determines that the sentence ))
(1) was imposed in violation of law or imposed as a
result of an incorrect application of the sentencing
guidelines, the court shall remand the case for further
sentencing proceedings with such instructions as the
court considers appropriate;
(2) is outside the applicable guideline range and is
unreasonable or was imposed for an offense for which
there is no applicable sentencing guideline and is
plainly unreasonable, it shall state specific reasons
for its conclusions and ))
(A) if it determines that the sentence is too high
and the appeal has been filed under subsection (a), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate;
(B) if it determines that the sentence is too low
and the appeal has been filed under subsection (b), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate;
(3) is not described in paragraph (1) or (2), it shall
affirm the sentence.

6
 of typical cases embodying the conduct that each guide-
line describes. When a court finds an atypical case, one
to which a particular guideline linguistically applies
but where conduct significantly differs from the norm,
the court may consider whether a departure may be
warranted.

U.S.S.G. ch. I, pt. A(4)(b), at 1.5-1.6 (policy statement). We

find that the district court's decision to depart upward in this

case was amply supported by the record.

The "heartland" of the typical section 2L1.1 offense, the

offense to which Lara pled guilty, includes the profit-making

element of Lara's scheme. Beyond this, however, section 2L1.1

appears to have accounted for no other aggravating conduct in cases

involving the smuggling, transporting, or harboring of an illegal

alien. Specifically, we are told, "[t]he Commission has not

considered offenses involving . . . dangerous or inhumane

treatment. An upward departure should be considered in those

circumstances." U.S.S.G. § 2L1.1, comment., application note 8.

In sentencing Lara, the district court adopted the findings of

the PSI and announced its intention to depart upward under section

5K2.0. The court cited as its reasons the large number of aliens

involved and the extortive and inhumane aspects of the instant

offense, both of which grounds the above commentary recognizes as

deserving of departure, and additional factors, including the use

of a firearm and the commission of another immigration offense

while on bond.

Moreover, a sentencing court may rely upon relevant informa-

tion contained in the PSI in fashioning its upward departure.

United States v. Murillo, 902 F.2d 1169, 1172 (5th Cir. 1990).

7
Having expressly adopted the factual findings of the PSI (subject

only to Lara's objection to one paragraph contained therein), the

district court was entitled to rely upon the facts as it found them

in imposing sentence. See United States v. Ramirez, 963 F.2d 693,

707 (5th Cir. 1992) (district court may choose to believe PSI's

construction of evidence in resolving factual issues); United

States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989) (same).

The PSI reveals a wealth of support for the district court's

judgment that the base offense level and adjustments afforded by

section 2L1.1 did not adequately reflect the seriousness of Lara's

offense. INS officials conducted interviews with Lara, her co-

defendant Ramos-Flores, local residents, and a number of the aliens

smuggled in by the two defendants. According to information

obtained from the interviews and recited in the PSI, Lara and

Ramos-Flores at one point threatened a smuggled alien, one Magda

Leticia Alvarado-Amaya, with a .357 revolver, insisting that she

either pay the $400 fee or suffer forcible repatriation. Fearing

for her safety, Alvarado-Amaya shortly thereafter sought refuge at

the home of a United States citizen, Patricia Mendoza, with whom a

number of the aliens stayed.

Mendoza confirmed Alvarado-Amaya's story and related another

incident, involving a fifteen-year-old El Salvardoan girl smuggled

in by Lara and Ramos-Flores. The girl, Rosa Candida Alvarenga, was

forced by Lara and Ramos-Flores to dress up like a prostitute and

"work the bars" in town until she could pay off her fee. When

Alvarenga informed Lara that she would prefer to work at more

8
honest labor, Lara reportedly became infuriated, and Ramos-Flores

threatened to cut her hands off and take her back to Mexico, once

again brandishing the revolver for persuasive effect.

Daunted but indomitable, Alvarenga fled the apartment in which

she had been held for the shelter of Patricia Mendoza's house.

Lara and Ramos-Flores later tracked her to Mendoza's house and

tried to threaten her into leaving with them. At one point, Ramos-

Flores discharged his revolver into the air and tried to kick the

door in but left when alerted that the police had been called.

We conclude that the district court did not clearly err in

adopting the factual findings of the PSI. Neither are we impressed

with Lara's contention that the conduct outlined above was

accounted for by the Sentencing Commission when promulgating

section 2L1.1, which no more accounts for the extortive nature of

Lara's particular immigration offense than it does the use of a

weapon in the "typical" immigration violation. See U.S.S.G.

§ 5K2.0, comment., at 5.43.

Lara's conduct undeniably fell outside the "heartland"

described by section 2L1.1. The record before us, at least as

regards the extortive ground for departure, plainly evinces

aggravating circumstances of the kind described in section 3553(b).

Hence, the district court did not err in departing upward based

upon the extortive elements of Lara's offense.

IV. Reasonableness of the Departure.

9
 We nevertheless must ascertain, as the second prong of the

Williams test requires, whether the extent of the departure imposed

by the district court was warranted. In engaging in such a review,

we are reluctant to tread with too heavy a step upon the district

court's discretion.3 A departure such as the instant one, under

section 5K2.0, is essentially an unguided one.4 The district

court, however, determined that it could look to section 2B3.2

("Extortion by Force or Threat of Injury or Serious Damage") for an

analogy to Lara's egregious offense conduct.5

In oral argument, counsel for Lara contended that, at over

seven times the maximum initial guideline range, the sentence

ultimately imposed was unreasonable in the extent of its departure

from the guideline norm. We note, at the outset, that "the mere

fact that a departure sentence exceeds by several times the maximum

3
See United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir.), cert.
denied, 493 U.S. 862 (1989) (Reasonableness of length of departure is
"quintessentially a judgment call. District courts are in the front lines,
sentencing flesh-and-blood defendants. The dynamics of the situation may be
difficult to gauge from the antiseptic nature of a sterile paper record.
Therefore, appellate review must occur with full awareness of, and respect for,
the trier's superior 'feel' for the case. We will not lightly disturb decisions
to depart, or not, or related decisions implicating degrees of departure.").
4
See United States v. Lambert, 963 F.2d 711, 718 n.3 (5th Cir.), vacated
for reh'g en banc, 1992 U.S. App. LEXIS 16194 (July 14, 1992). A "guided"
departure is one for which the Guidelines provide explicit direction as to the
extent of adjustment to be imposed, such as that under § 2G1.1, comment.,
application note 1 (8-level downward departure if offense lacked profit motive
or physical force or coercion). A departure pursuant to § 5K2.0, in contrast,
is "unguided" in that the guidelines specify no set number of levels by which the
district court must calibrate the degree of its departure.
5
The actual wording used by the district court in applying § 2B3.2 by
analogy is important to the determination of this case, as will become apparent
below. The court stated,
In attempting to structure an upward departure, I looked to the
sentencing guideline section 2B3.2, which involved extortion by
force or threat of serious criminal offense . . . . I think the
application of the sentencing guideline section 2B3.2 is most
analogous to the defendant's actual conduct.

10
recommended under the Guidelines is of no independent consequence

in determining whether the sentence is reasonable." United States

v. Roberson, 872 F.2d 597, 606 n.7 (5th Cir.), cert. denied, 493

U.S. 861 (1989).6 Nor is a sentencing court obliged to provide

reasons justifying the extent of its departure. Id. at 607.

Even so, the district court provided clear and cogent

justification for the extent of its departure. "When departing on

the basis of offense characteristics, the sentencing court should

extend or extrapolate from other Guidelines levels or principles,

or employ analogies to closely related circumstances or conduct

addressed by the Guidelines." United States v. Strickland, 941

F.2d 1047 (10th Cir.), cert. denied, 112 S. Ct. 614 (1991).

The district court here analogized Lara's egregious conduct to

the offense of extortion defined by section 2B3.2. By departing on

that basis, the court reconciled the guidelines' broad objective of

uniformity and proportionality in sentencing with the statutory

directive in the individual case to "impose an appropriate

sentence, having due regard for the purposes" of deterrence, just

punishment, and the protection of the public. See 18 U.S.C.

§ 3553(a)(2),(b) (1988); see also United States v. Gardner, 905

F.2d 1432, 1438 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990);

6
In Roberson, we upheld a sentence more than three times the guideline
maximum. Departures of even greater multiples have been upheld as well. See,
e.g., United States v. Geiger, 891 F.2d 512 (5th Cir. 1989) (4½ times), cert.
denied, 494 U.S. 1087 (1990); United States v. Juarez-Ortega, 866 F.2d 747 (5th
Cir. 1989) (per curiam) (more than 4 times); United States v. Guerrero, 863 F.2d
245 (2d Cir. 1988) (more than 5 times). We also note the multiple and
independent grounds for departure cited by the district court, as not all the
enhancement of Lara's sentence is attributable to the § 2B3.2 departure.

11
United States v. Ferra, 900 F.2d 1057, 1062-63 (7th Cir. 1990).7

We thus cannot say the district court's imposition of a nine-point

departure for the extortive aspects of Lara's conduct in this case

was unreasonable.

V. Discharge of a Firearm.

Secondly, Lara objects to the imposition, by analogy to

section 2B3.2(b)(2)(A), of a five-level increase in her offense

level for the discharge of a firearm. The propriety of such a

departure is beyond peradventure, as section 5K2.0 expressly

provides that "if a weapon is a relevant factor to sentencing for

an immigration violation, the court may depart for this reason."

Nor is the extent of the departure unreasonable. Section 5K2.6

notes that "[t]he discharge of a firearm might warrant a substan-

tial sentence increase." We can find no fault with the district

court's application of the guidelines in this instance.

Lara argues, instead, that there is no evidence in the record

that Lara, as opposed to her co-defendant, ever used the gun.

Moreover, she claims, she was present on only one occasion when the

firearm was brandished and not at the time it was discharged. The

7
We acknowledge that "[i]t would throw the structure of the guidelines out
of kilter to say that a defendant may receive more time on a `departure' than he
could have received had he been convicted of the crimes leading the judge to
depart." Ferra, 900 F.2d at 1063. See also United States v. Kim, 896 F.2d 678,
684-85 (2d Cir. 1990). But cf. Diaz-Villafane, 874 F.2d at 51-52 (rejecting any
such strictures on district court's discretion to depart). We do not, however,
believe that such a characterization properly describes the actions of the court
in the instant case. Here, the court raised Lara's base offense level of 9 under
§ 2L1.1 by 9 points, by analogy to § 2B3.2's base offense level of 18. We note,
however, that had Lara been separately convicted under § 2B3.2 for conduct
sufficiently unrelated to her immigration offense to avoid the grouping of counts
under § 3D1.1-5, her total offense level would have been computed at 27, not 18.

12
short answer to Lara is that the PSI, the pertinent parts to which

Lara failed to object, reveals that Lara in fact was present on

both occasions.

It is true that her co-defendant, Ramos-Flores, apparently was

the only one actually to use the gun in the commission of the

offense. But Lara was more than merely present when Ramos-Flores

brandished and discharged the gun; she was, in fact, the registered

owner of the firearm. When arrested, moreover, she led the police

directly to its hiding place under her bed. We cannot accept her

contention that the guidelines "personalize" an individual's

conduct to such an extent that the district court may not consider

the relevant conduct of a co-defendant plainly authorized by his

accomplice.8 The district court did not clearly err in relying

upon the PSI's factual findings to depart on the basis of the

discharge of the revolver.

VI. Departure for Large Number of Aliens.

Lara additionally objects to the departure based upon the

large number of aliens involved.9 The six aliens discovered at the

8
For this reason, we need not address whether Lara's involvement with the
firearm rose to the level of "constructive possession." See United States v.
Mueller, 902 F.2d 336 (5th Cir. 1990). Rather, we rest our conclusion on the
fact that each of Lara's counts of conviction included an aiding and abetting
component. As an aider and abettor of Ramos-Flores's actions in furtherance of
the commission of the offense, Lara is punishable as a principal. 18 U.S.C. §
2. See also United States v. Barragan, 1992 U.S. App. LEXIS 9492 (9th Cir. Apr.
22, 1992) (unpublished) (attributing relevant offense conduct of one defendant
to co-defendant under aider and abettor theory).
9
Although the district court merely cited the large number of aliens
involved as one possible ground justifying departure, and there is no showing
that it was a determinative factor in the sentencing, we must nonetheless reach
the issue under Williams as, absent a subsequent showing of harmless error,
remand is required when a sentencing court relies upon an invalid factor in
departing. See Williams, 112 S. Ct. at 1120-21.

13
time of her arrest, she claims, are not "a large number." Lara

overlooks, however, the district court's finding, set out in the

PSI, that Lara and Ramos-Flores together had transported at least

forty aliens from November 1989 to March 7, 1990. Lara did not

object to this finding. Indeed, her sworn admissions may have been

sufficient, standing alone, to lead the district court to conclude

that hers was an expansive smuggling operation.

Section 2L1.1, application note 8, plainly states that "[t]he

Commission has not considered offenses involving large numbers of

aliens . . . . An upward departure should be considered in those

circumstances." See also United States v. Velasquez-Mercado, 872

F.2d 632 (5th Cir.), cert. denied, 493 U.S. 866 (1989); United

States v. Salazar-Villarreal, 872 F.2d 121 (5th Cir. 1989)

(approving upward departures premised in part on the number of

aliens transported). Circuit precedent is even plainer. In United

States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir. 1989), we

upheld a departure 2½ times greater than the guideline maximum

based solely on the fact that the defendant's crime "involved

thirty-five aliens, an unusually large number of persons." Id. at

171 (emphasis added). Accord United States v. Hernandez, 943 F.2d

1, 3 (5th Cir. 1991) (twenty-one aliens a large number). Lara's

contention on this point is without merit.

VII. Psychological Harm to a Victim.

The district court accepted the PSI's recommendation for

upward departure under section 5K2.3 ("Extreme Psychological

14
Injury") for the psychological harm inflicted on Alvarenga. That

section's policy statement authorizes an upward departure where "a

victim or victims suffered psychological injury much more serious

than that normally resulting from commission of the offense

. . . ." At the outset, application of section 5K2.3 to the

instant offense would appear to be barred by the statement in

application note 2 to section 3D1.2 that, in the case of an

immigration offense, there is no identifiable victim. The district

court skirted this problem by applying section 5K2.3 by analogy to

the section 2B3.2 extortion offense. There was, of course, no

specified offense of conviction under section 2B3.2.

We decline to decide, however, whether the district court's

methodology in this instance was permissible,10 for we conclude that

the factual findings of harm made by the district court did not

rise to the level of that "substantial impairment of the intellec-

tual, psychological, emotional, or behavioral functioning" intended

by section 5K2.3 and required by caselaw to support a departure on

that basis.11 The PSI's findings, adopted by the district court,

10
We limit our discussion of this issue merely to pointing out that we
rejected a similar argument (albeit applied to very different facts) as to the
analogous departure provision of § 5K2.8 (extreme conduct to the victim). See
Roberson, 872 F.2d at 604-05.
11
See § 5K2.3 (policy statement); United States v. Fawbush, 946 F.2d 584,
586 (8th Cir. 1991) (psychological harm must be "much more serious" than that
normally resulting from crime). Compare United States v. Morin, 935 F.2d 143,
144-45 (8th Cir. 1991) (departure held to be error; record did not support
finding that victim suffered greater than normal psychological harm from
offense); United States v. Zamarripa, 905 F.2d 337, 340-41 (10th Cir. 1990)
(same) with United States v. Newman, 965 F.2d 206, 209-210 (7th Cir. 1992)
(departure upheld; psychologist testified as to great harm, and Social Security
Administration found victim totally disabled); United States v. Ellis, 935 F.2d
385, 396 n.12 (1st Cir.) (departure upheld; testimony of victim's counselor
supported finding of extreme harm), cert. denied, 112 S. Ct. 201 (1991); United
States v. Pergola, 930 F.2d 216, 219 (2d Cir. 1991) (departure upheld; finding
supported by evidence of victim's sleepless nights and constant fear of being
killed).

15
stated only in conclusionary fashion that Lara's conduct "resulted

in psychological harm to the alien" and that Alvarenga was placed

on tranquilizers "due to a possible nervous breakdown." Even

accepting the findings as not clearly erroneous, there is no

evidence of the alleged substantial impairment or its duration. We

find this an insufficient factual basis to support enhancement

under section 5K2.3.

VIII. Departure for Violation of 18 U.S.C. § 3147.

Lara also contends that the district court erred in upwardly

departing by three offense levels based upon her immigration

offense committed while on bond from the instant offense of

conviction. Lara was released on bond pending trial on March 8,

1990. She was arrested in Brownsville on a second charge of

transporting illegal aliens on May 20, 1990, pled guilty, and

received a sentence of 131 days' imprisonment. Sentencing for the

Brownsville conviction occurred on September 27, 1990, well before

sentence was imposed in this case on June 20, 1991.

Section 2J1.7 directs a sentencing court to add three offense

levels "[i]f an enhancement under 18 U.S.C. § 3147 applies."12 In

12
18 U.S.C. § 3147, as amended, provides,
A person convicted of an offense committed while
released under this chapter shall be sentenced, in
addition to the sentence prescribed for the offense to))
(1) a term of imprisonment of not more than ten
years if the offense is a felony; or
(2) a term of imprisonment of not more than one
year if the offense is a misdemeanor.
A term of imprisonment imposed under this section shall

16
this case, the district court refused the government's request for

enhancement under section 3147. The district court imposed an

enhancement anyway, apparently applying section 2J1.7 by analogy

only.

This enhancement was erroneous. Recently, in United States v.

Pace, 955 F.2d 270, 278-79 (5th Cir. 1992), we held that Congress

and the Sentencing Commission have indicated, respectively, in

sections 3147 and 2J1.7, that an enhancement for a post-conduct

conviction should be applied "to the sentence for the new crime

committed while on release, not the original crime for which the

defendant is on release."13

The conclusion drawn in Pace accords with reason and common

sense. We do not believe it was in the contemplation of Congress

or the Commission to permit an enhancement when the government

elects not to seek express statutory or guideline enhancement in

the second conviction, as was the case with the Brownsville

conviction. Such a construction avoids the anomaly, well illus-

trated by the facts of this case, of subjecting an offender to risk

of enhancement of her sentence for the first offense simply because

it happens to be adjudicated after the second conviction.

Lara argues, as well, that the district court improperly

included the Brownsville conviction in computing her criminal

history under section 4A1.1(b), thus raising her criminal history

be consecutive to any other sentence of imprisonment.
13
The result in Pace accords with the determination in the instant PSI:
"Our interpretation of U.S.S.G. § 2J1.7 is that it should have been applied in
the Brownsville case . . . and is not applicable to the instant offense."

17
score from 0 to 2 and resulting in a criminal history category of

II. Lara argues, without citation of authority, that conduct and

conviction occurring after the conduct that is the subject of the

current sentence cannot be employed to increase the criminal

history score.

We find this issue resolved by the plain language of the

guidelines provision defining "prior sentence" for purposes of the

criminal history computation: Section 4A1.2(a)(1) provides that a

prior sentence is "any sentence previously imposed upon adjudica-

tion of guilt . . ." (emphasis added). Simply put, the Brownsville

conviction was a sentence imposed upon adjudication of guilt prior

to the sentence for the instant offense. See also section 4A1.2,

comment., application note 1 (including as a prior sentence one

"imposed after the defendant's commencement of the instant offense,

but prior to sentencing on the instant offense").14

IX. Denial of Adjustment for Acceptance of Responsibility.

Lastly, Lara asserts as error the district court's failure to

grant her a two-point reduction in offense level for acceptance of

14
We note that enhancement under § 2L1.1(b)(2) would have been inappropri-
ate, inasmuch as it applies "only if the previous conviction occurred prior to
the last overt act of the instant offense." § 2L1.1, comment., application note
4. The Brownsville conviction occurred after the last overt act of the instant
offense. Nothing in the guidelines, however, suggests that the unavailability
of enhancement under § 2L1.1(b)(2) prevents an adjustment to the criminal history
category under § 4A1.1.
Nor do we find the applicable time period for sentences to be considered
in adjusting the criminal history score specified in § 4A1.2(e) relevant to the
determination of this issue. The provisions therein merely instruct courts to
ignore "stale" offenses. Here, Lara received a prior sentence for the
Brownsville conviction "within fifteen years of [her] commencement" of the
instant offense. § 4A1.2(e)(1). Thus, § 4A1.2(e) provides no obstacle to the
assignment to Lara of criminal history category II.

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responsibility. Under U.S.S.G. § 3E1.1(a), the court may reduce

the offense level by two points "[i]f the defendant clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility for his personal conduct." The trial court's

determination of acceptance of responsibility is entitled to great

deference on review and will not be disturbed unless it is without

foundation. United States v. Villarreal, 920 F.2d 1218 (5th Cir.

1991). Here, both the district court and the PSI stated that,

although Lara cooperated with the INS after her arrest, she tended

to minimize her behavior and continued to deny that a firearm was

involved. The district court's decision in this regard is

adequately supported in the record, and we decline to disturb it.

X. Conclusion.

The district court fundamentally erred by enhancing Lara's

sentence three points for a prior conviction under section 2J1.7.

Under Williams, we must remand for resentencing unless we can

conclude that the error did not affect the district court's

selection of the sentence to be imposed. See Williams, 112 S. Ct.

at 1120-21. There has been no such showing of harmless error in

this case. We therefore VACATE and REMAND for resentencing

consistent herewith.15

15
Finally, we note sua sponte that there exists a discrepancy between the
oral imposition of sentence and the sentence imposed in the judgment of
commitment. The transcript of the sentencing hearing states that Lara is to
serve the first 24 months of her sentence on counts 2-6 consecutively to the
sentence imposed for count 1; the judgment of commitment specifies 27. We
anticipate that this discrepancy will be resolved by the district court on
remand.

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