dissenting:
Concluding that the record before us does not support critical factual findings, and that the district court incorrectly applied the Sentencing Guidelines and assigned insufficient reasons for departing upward from the guidelines, I respectfully dissent.
The Factual Record
As the majority notes, the record before us is both scant and sketchy. Essentially we have the government’s charges in the indictments, the defendant’s plea of guilty to several counts pursuant to a plea agreement, the presentence investigation (PSI), and the comments of the prosecutor and defense counsel at the brief sentencing hearing. The majority concludes that this record sufficiently supports the trial court’s factual findings; I respectfully disagree.
Distilling the facts before us, and relying heavily on the PSI, I find only three aliens whom Murillo helped to make illegal entry into the United States. These three, found at her home, were Valentin Ruiz-Martinez, Sergio Geovanny Alvarado-Alberto, and Jose Gabriel Morante-Alcola. Ruiz was the son of Murillo’s live-in boyfriend and Alvarado was the son’s friend. Murillo’s boyfriend gave her the money to give to a third party to bring his son and his son’s friend into the country. In addition, Murillo helped two other aliens file falsified applications for adjustment of status and was apprehended in an undercover operation wherein she agreed to help, for pay, two other aliens purportedly desirous of illegal entry and status.
Other than the five aliens actually assisted and the two fictitious aliens who were the subject of the undercover operation, the record contains only allusions and con-clusionary statements by the prosecutor. We confront the anomaly of critical facts being supported only by vague, general charges and by the absence of proof to the contrary. I find this unacceptable conceptually. I find it even more unacceptable as applied herein.
The district court found that “[a]ll evidence in this case indicates that Ms. Murillo was in the business of providing false documents for payment to illegal aliens.... ” Perhaps “all of the evidence” does that, but “all of the evidence” in this record simply is inadequate to prove anything.
*1175After noting Murillo’s involvement with the five actual and two fictitious aliens, the PSI noted that agents found “several fraudulent documents” in Murillo’s home. Based on this information the probation officer concluded that Murillo “was running a business in which she provided various illegal aliens with necessary documents to apply for necessary forms.” The prosecutor sought to buttress this by making the statement at sentencing “When we did the search of Ms. Murillo’s house, we found several, innumerable applications. I don’t know how many at this time....” No support whatsoever was offered for counsel’s statement. In addition, the prosecutor opined that because of Ms. Murillo’s acts the amnesty system in the entire Eastern District of Louisiana was severely compromised. Defense counsel countered by saying that only the aliens named in the indictments, plus the two in the undercover operation, were actually involved.
Based on the PSI, which suggested that there was no basis for departure, and the statements of the prosecutor, which were accepted uncritically and at face value by the district court, the trial court found as a fact that Ms. Murillo ran a thriving business of aiding aliens for pay and that “countless illegal aliens” were involved. The connotation of “countless” is unfortunate, albeit accurate, for there was indeed no count beyond the seven. So said the PSI; so said the prosecutor. The lack of a reliable count does not equate to an innumerable count. But that was the result. Finally, the court accepted the prosecutor’s bald statement that Ms. Murillo had single-handedly severely compromised the amnesty program in the whole Eastern District of Louisiana. I glean no record support whatever for that finding. If one swallow does not make a spring then surely five real and two fictitious aliens, several fraudulent documents and an uncounted supply of blank forms does not an amnesty-program disaster make.
Application of the Guidelines
Murillo was sentenced in April 1989. The applicable Guidelines are those in effect at that time.
The PSI applied Guideline § 2L1.1, secured a starting base offense level of 9, and then added three levels because the offense was committed for profit. I view this as error. In 1989 Guideline § 2Ll.l(b) provided for a reduction of three levels if the offense was committed other than for profit.
In making its three-level increase, the PSI cited to Guideline § 2L2.1(b)(l). This apparently was the source of the understandable confusion leading to the computation error. In April 1989 the Guidelines provided:
2L1.1 —base offense level of nine with a three-level reduction if the offense was committed other than for profit;
2L2.1 —base offense level of six, with a three-level addition if the offense was committed for profit.
Subsequently, 2L2.1 was amended to conform to 2L1.1.
Four levels were added by the probation officer because of Murillo’s leadership role, and two levels were deducted for her acceptance of responsibility. The net base offense result was 9 + 3 + 4 — 2 — 14.
The confusion is made manifest in the Sentencing Recommendation, which noted a guideline range of 12 to 18 months, but nonetheless, despite the PSI finding of no basis for departure, recommended 21 months incarceration, the period referred to by the trial court in sentencing.
As I understand the Guidelines the proper offense level should have been 11, providing a sentencing range of 8 to 14 months. I reach 11 by adding four to the base nine and deducting two for Murillo’s acceptance of accountability — 9 + 4 — 2 = 11.
Departure
I understand that the trial judge bases his departure on the finding that Murillo had severely compromised the amnesty program in the Eastern District of Louisiana. Under Guideline § 5K2.7 disruption of a governmental function may serve as the basis of an upward departure. That guideline, however, is qualified. It continues: “Departure from the guidelines ordi*1176narily would not be justified when the offense of conviction is an offense such as bribery or obstruction of justice; in such cases interference with a governmental function is inherent in the offense....” It would seem that the charged immigration offenses inherently and necessarily interfere with the governmental immigration function.
The Sentencing Guidelines state, and our decisions underscore, that the sentencing range resulting from application of the Guidelines is the sentencing norm and that departures, upward or downward, should only be made for reasons not adequately considered by the Sentencing Commission. I perceive no such basis for an upward departure herein.
For these reasons I respectfully DISSENT.