977 F.2d 593
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Silviano RODRIGUEZ-OSORIO, Defendant-Appellant.
No. 91-50824.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 15, 1992.*
Decided Oct. 7, 1992.
Before WIGGINS, KOZINSKI and KLEINFELD, Circuit Judges.
MEMORANDUM**
Rodriguez-Osorio appeals a departure upward for transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). This is a high speed chase case, similar to United States v. Hernandez-Rodriguez, --- F.2d ---- (9th Cir.1992) (slipsheet op. 11175, case no. 91-50572), which came down during the pendency of this appeal. We reverse.
Rodriguez-Osorio's offense level was nine, less a two point reduction for acceptance of responsibility, plus a two point enhancement for reckless endangerment during flight under U.S.S.G. § 3C1.2. With a criminal history category of II, his guideline range was 6-12 months. The district court departed upward and sentenced him to 18 months.
We review de novo whether the district court correctly identified an aggravating circumstance not adequately taken into account by the Sentencing Commission, for clear error the district court's factual findings supporting the existence of the aggravating circumstance, and for abuse of discretion whether the extent of the departure was unreasonable. United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc).
The district court departed upward on three grounds, circumstances not taken into account by the guidelines under § 5K2.0, culpability greater than reckless in the course of dangerous flight under application note 2 to § 3C1.2, and dangerous treatment of smuggled aliens under application note 8 to § 2L1.1. The second reason, culpability greater than reckless, was erroneous, because no finding of the requisite level of culpability was made in support. United States v. Hernandez-Rodriguez, --- F.2d ---- (9th Cir.1992) (slipsheet op. 11175, case no. 91-50572), at 11183-11184. The third reason, dangerous treatment of the smuggled aliens under application note 8 to 2L1.1, was a proper one. Id. at 11181-11182. But we cannot tell whether the court would have departed as far, without the erroneous ground. Nor did the court provide a reasoned explanation of the extent of departure. Id. at 11185-11186; Lira-Barraza at 751.
Accordingly the sentence must be VACATED and the case REMANDED for resentencing.