United States Court of Appeals,
Eleventh Circuit.
No. 94-4783.
UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,
v.
Victor BERNAL, Defendant-Appellee, Cross-Appellant,
Eduardo Berges, Defendant-Appellee.
Aug. 6, 1996.
Appeals from the United States District Court for the Southern
District of Florida. (No. 93-84-CR-FAM), Federico A. Moreno, Judge.
Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.
PER CURIAM:
Victor Bernal and Eduardo Berges were convicted of various
crimes in connection with an attempt to export two endangered
primates—an orangutan and a gorilla—from the United States to
Mexico in violation of the Lacey Act Amendments of 1981 and the
Endangered Species Act of 1973.1 The applicable sentencing range
*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
1
Bernal and Berges were convicted of (1) conspiring to
violate the Lacey Act Amendments of 1981, 16 U.S.C. §§ 3371-3378,
and the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544
(in violation of 18 U.S.C. § 371); (2) engaging in an intended
sale, purchase, and transport of wildlife sold in violation of
the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in
violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (3) attempting
to export wildlife that they knew had been sold in violation of
the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in
violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (4) knowingly
engaging in the trade of wildlife specimens contrary to the
provisions of the Convention on International Trade in Endangered
Species of Wild Fauna and Flora ("CITES") without first obtaining
a valid export permit and re-export certificate as required by
CITES and 50 C.F.R. § 23.12(b)(1) (in violation of 16 U.S.C. §
1538(c)(1) and (g)); and (5) attempting to export endangered
under the Sentencing Guidelines was twenty-four to thirty months
2
for Bernal and fifteen to twenty-one months for Berges. The
probation officer noted in the presentence report that a downward
departure from the guidelines range might be warranted in Bernal's
case under U.S.S.G. § 5K2.11 because Bernal had intended to export
the gorilla for purposes of breeding and exhibition, and thus his
conduct did not "cause or threaten the harm or evil sought to be
prevented by the law" under which he was convicted. The probation
officer did not consider a similar downward departure for Berges.
Following a lengthy sentencing hearing, the district court decided
to apply U.S.S.G. § 5K2.11 to both defendants, and gave them
sentences of only seventy days (which they had already served). 3
species of wildlife from the United States (in violation of 16
U.S.C. §§ 1538(a)(1)(A) and (g)).
2
All counts were grouped together for purposes of offense
level computation. See U.S.S.G. § 3D1.2(d).
Bernal's base offense level was 6 under the guideline
applicable to offenses involving fish, wildlife, and plants.
U.S.S.G. § 2Q2.1(a). (The base offense level for a
conspiracy count is the same as that for the substantive
offense. See U.S.S.G. § 2X1.1.) His base level was
increased by 2 levels because the offense "was committed for
pecuniary gain or otherwise involved a commercial purpose,"
§ 2Q2.1(b)(1)(A); increased by 6 levels because the
purchase price of the wildlife exceeded $70,000, §
2Q2.1(b)(3)(A); § 2F1.1(b)(1)(G); and increased by 3
levels to reflect Bernal's role as an organizer of the
operation, § 3B1.1(a), (b). His total offense level was 17
(imprisonment for 24 to 30 months).
The probation officer applied the same calculation in
the case of Berges, with the exception of the 3-level
increase for a leadership role. His total offense level was
14 (imprisonment for 15 to 21 months).
3
Bernal was also sentenced to three years of supervised
release on three counts and one year of supervised release on two
other counts, and was fined $40,000. Berges was likewise
sentenced to supervised release, but was not fined.
The United States now appeals the sentences imposed on both
defendants.4
We review a district court's decision to depart downward from
the sentencing guidelines for an abuse of discretion. See Koon v.
United States, --- U.S. ----, 116 S.Ct. 2035, --- L.Ed.2d ----
(1996). A district court may impose a sentence outside of the
sentencing range established by the guidelines if the court 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."5 18 U.S.C. §
3553(b); U.S.S.G. § 5K2.0. One such circumstance identified in
the guidelines as a possible ground for departure is when the
defendant's conduct does not "cause or threaten the harm or evil
sought to be prevented by the law proscribing the offense at
issue." U.S.S.G. § 5K2.11.
The purpose of the Lacey Act is to protect "those species of
fish and wildlife whose continued existence is presently
threatened" by "gradually drying up the international market for
4
Appellees have cross-appealed on two grounds. First, they
claim that the Lacey Act is not applicable in this case because
the term "wildlife," as used in the Act, does not apply to
animals bred in captivity. Second, they claim that the district
court erred in denying their motion for acquittal with respect to
the Lacey Act counts because there was no evidence introduced at
trial to prove that they knew the animals had previously been
sold in violation of the law. These claims are wholly meritless,
and we therefore reject the cross-appeal.
5
To determine whether a circumstance was adequately taken
into consideration, the court may "consider only the sentencing
guidelines, policy statements, and official commentary of the
Sentencing Commission." 18 U.S.C. § 3553(b).
endangered species," thus "reducing the poaching of any such
species in the country where it is found." See S.Rep. No. 91-526,
91st Cong., 1st Sess., reprinted in 1969 U.S.C.C.A.N. 1413, 1415-
16. Likewise, one of the purposes of the Endangered Species Act is
to enforce international agreements designed "to conserve to the
extent practicable the various species of fish or wildlife and
plants facing extinction." 16 U.S.C. § 1531(a)(4); see also
Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279,
2297, 57 L.Ed.2d 117 (1978).
The district court found that there was no evidence that
Bernal intended to harm the primates involved in this case.
Rather, the evidence showed that Bernal, the director of a Mexican
state Commission of Parks and Resources and of Foreign Fauna, was
a conservationist, that he loved animals, and that he intended to
use the gorilla for breeding purposes to help perpetuate the
species. The district court also found that Berges knew that
Bernal intended to use the gorilla for breeding and exhibition
purposes. The court concluded that the conduct of both Bernal and
Berges did not "cause or threaten the harm or evil sought to be
prevented by the law proscribing the offense at issue." U.S.S.G.
§ 5K2.11. Because the court concluded that the Sentencing
Commission did not consider the special factors involved in this
case under the applicable sentencing guideline, it decided that a
downward departure was justified.6 The district court did not
6
Since the special factor in this case is an "encouraged
factor," see U.S.S.G. § 5K2.11, the district court was authorized
to depart if the applicable guideline did not take it into
account. See Koon, --- U.S. at ----, 116 S.Ct. at 2045.
abuse its discretion in making this decision.
AFFIRMED.