United States v. Jorge Guarin

BOGGS, Circuit Judge.

Jorge Guarin pled guilty in district court to possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). At sentencing, the district court refused to reduce his offense level two points for acceptance of responsibility on the basis of this guilty plea alone, absent any other affirmative indicia of acceptance of responsibility. U.S.S.G. § 3E1.1.

The district court also departed upward from the guideline determination, saying that it would increase Guarin’s offense level two points because it had determined that Guarin’s base offense level did not sufficiently reflect the extent of his cocaine dealing activities. 18 U.S.C. § 3553(b). Guarin now appeals these two sentencing determinations. Finding no error in these determinations, we affirm.

I

On October 27, 1988, an FBI informant arranged by telephone to sell cocaine to Guarin in Cleveland. Guarin was arrested the following day. Within days of his arrest, Guarin suffered severe withdrawal symptoms from his heroin addiction. At the time of his arrest and for some time thereafter, Guarin refused to assist the authorities with their investigation.

On November 17, 1988, Guarin was indicted for conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C. § 846, and possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On December 22, 1988, Guarin pled guilty to the possession charge. The conspiracy charge was dismissed at sentencing.

On March 21, 1989, the district court held a sentencing hearing and found that, under the Sentencing Guidelines, Guarin had a base offense level of 20 and a criminal history category of III. U.S.S.G. § 2D1.1(a)(3) (200-299 grams of cocaine); U.S.S.G. § 4Al.l(b). This offense level and criminal history category indicated a guideline range of 41-51 months.

At the sentencing hearing, FBI Special Agent Michael Phillips (who was involved in an investigation of cocaine trafficking in Cleveland) indicated that, prior to questioning another participant in the cocaine transactions, Leonel Montoya, on October 27, he had no knowledge of Guarin selling cocaine in Cleveland. Montoya told police that Guarin had been his supplier on a number of occasions. Phillips also noted that another participant in the transactions under investigation, William Sowell, owed Guarin some cash or cocaine.

The presentence report prepared by the probation department recommended that Guarin receive a two-point reduction in his offense level because he accepted responsibility. U.S.S.G. § 3E1.1. The probation department found that Guarin’s guilty plea demonstrated such acceptance.

The court rejected this recommendation and refused to reduce his offense level on this basis. It found that Guarin had not been helpful in the government’s investigatory efforts, and thus had not demonstrated acceptance of responsibility beyond a guilty plea. The court believed that the guilty plea, absent more, did not merit an offense level reduction for acceptance of responsibility.

The court then made an upward departure, measured by increasing Guarin’s offense level two levels, because it felt that Guarin’s conduct was more egregious than that evinced by his official guideline offense level. 18 U.S.C. § 3553(b).1 This offense level increase resulted in a sentencing range of 51 to 63 months. The district court sentenced Guarin to 60 months in prison, three years of supervised release, and a $50 assessment. Guarin appealed.

II

Guarin argues that the district court abused its discretion by refusing to *1122reduce his base offense level two points because he pleaded guilty to possession of cocaine with intent to distribute. U.S.S.G. § 3E1.1. Guarin presented no evidence of acceptance of responsibility other than his guilty plea. The court stated that a guilty plea, absent more, was insufficient to fulfill the requirements of this section.

The sentencing guidelines state that a guilty plea alone does not merit, as of right, a reduction for acceptance of responsibility. U.S.S.G. § 3El.l(c). In light of this provision, we find that the district court was not clearly erroneous in refusing to reduce Guarin’s offense level.

Guarin argues that the district court expected him to accept responsibility by naming his sources in New York. The conspiracy count, which purportedly involved these cocaine sources in New York, was dismissed. Guarin contends that he need only accept responsibility for offenses to which he has pled guilty. U.S. v. Perez-Franco, 873 F.2d 455 (1st Cir.1989).2

We find Guarin’s use of Perez-Franco inappropriate to this case. Perez-Franco is instructive only when, absent the district court’s allegedly illegitimate expectation, there is clear evidence that the defendant actually accepted responsibility. Indeed, the Perez-Franco court remanded the case to determine this question. U.S. v. Perez-Franco, 873 F.2d 455, 464 (1st Cir.1989).

Unlike the situation in Perez-Franco, the sentencing hearing record here is clear. The district court stated that Guarin had no right to an offense level reduction for acceptance of responsibility for merely pleading guilty. We do not need to remand for further hearings on this question. We thus affirm the district court's refusal to grant Guarin a two-point offense level reduction under U.S.S.G. § 3E1.1.

Ill

The district court found that the base offense level assigned did not adequately reflect the severity of Guarin’s offense and thus departed upward. 18 U.S.C. § 3553(b). In particular, the court felt that Guarin was a more active cocaine dealer in Cleveland than his offense level indicated. Guarin now argues that this increase constituted an abuse of discretion.

Our review of the district court’s action is guided by the standards explicated in United States v. Joan, 883 F.2d 491 (6th Cir.1989). The Joan court adopted, for reviewing departures, a three-step test proposed by the First Circuit in U.S. v. Diaz-Villafane, 874 F.2d 43 (1st Cir.1989). The Joan court stated:

The first step is a question of law regarding whether the circumstances of the case are sufficiently unusual to justify departure. Step two involves a determination as to whether there is an actual factual basis justifying the departure. Here, the standard is whether the determination made involves clear error.

U.S. v. Joan, 883 F.2d 491, 494 (6th Cir.1989). “The third step is that, once the Court has assured itself that the sentencing court considered circumstances appropriate to the departure, the degree of departure must be measured by a standard of reasonableness on appeal.” Id. at 495-96.

Under the first two steps, we find that the circumstances relied upon by the district court were as a matter of law “sufficiently unusual” and that facts justifying the district court’s action were in the record. The district court indicated that Guarin was a more active cocaine dealer than indicated by his base offense level. Thus, he depended on cocaine dealing for his livelihood to a greater extent than would another defendant at his offense level. This fact provides a basis for departure. U.S.S.G. § 5H1.9, p.s.; United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir.1989) (“... criminal livelihood, if not adequately reflected in defendant’s offense level, may also justify departure.”). Guarin had a prior record for narcotics trafficking, and had distributed cocaine to *1123Sowell, although he had not yet received payment. Evidence demonstrated that Guarin was a supplier to Montoya on this and other occasions.

Under the third step in the Joan test, we find that the direction and degree of departure in this case was reasonable. As a procedural matter, we note that 18 U.S.C. § 3553(b) contemplates a departure from the guidelines rather than an increase in the offense level for factors not adequately considered. In this case, the district court stated its departure in terms of an increased sentence analogous to an increase in offense level.

Nonetheless, we may review the propriety of the “departure” by examining the reasonability of the actual sentence imposed. Initially, Guarin had a base offense level of 20 and a criminal history category of III. U.S.S.G. § 2D1.1(a)(3) (200-299 grams of cocaine); U.S.S.G. § 4Al.l(b). This offense level and criminal history category indicated a guideline range of 41-51 months. The judge’s departure resulted in a sentencing range of 51 to 63 months. The court imposed a 60-month sentence.

We find this 60-month sentence to be a reasonable departure from the guidelines. Since Guarin distributed the cocaine to Montoya, knowing it would be resold to Sowell, he could have been liable for a two-point offense level increase for being a leader. U.S.S.G. § 3Bl.l(c). Thus, the sentencing departure actually imposed for this and other conduct is reasonable. We therefore affirm the district court’s action under 18 U.S.C. § 3553(b).

. The court’s action should not be characterized as an increase in offense level, as there is no statutory authority for such an increase. 18 U.S.C. § 3553(b) authorizes departure from the guidelines, not an otherwise unauthorized increase in offense level.

. We note that the Fourth Circuit recently joined the Second and Fifth Circuits in rejecting the Perez-Franco analysis. United States v. Gordon, 895 F.2d 932 (4th Cir.1990). See United States v. Moskowitz, 888 F.2d 223 (2d Cir.1989); United States v. Tellez, 882 F.2d 141 (5th Cir.1989).