UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1760
UNITED STATES OF AMERICA,
Appellee,
v.
JOSUE FUENTES-VAZQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Gabriel Hernandez Rivera for appellant.
Antonio R. Bazan, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jose A. Quiles-Espinosa, Senior
Litigation Counsel, Joseph J. Frattallone, Assistant United States
Attorney, were on brief for appellee.
April 28, 1995
COFFIN, Senior Circuit Judge. Appellant Josue Fuentes
Vazquez claims that the district court erred in departing upward
from the guidelines when it sentenced him for carjacking.
Finding the departure both legally permissible and factually
supportable, we affirm.
I. Factual Background
Some basic facts are not in dispute. On February 1, 1994,
Fuentes and an accomplice attempted an ill-fated carjacking in a
heavily congested commercial section of Isla Verde, Carolina,
Puerto Rico. The targeted victim, Anselmo B. Marquez, turned out
to be an FBI Agent. Fuentes pointed a semi-automatic pistol at
Marquez as the agent disembarked from his car, and demanded and
received his keys and wallet. A few moments later, Marquez drew
his official pistol from his waist bag and fired twice at
Fuentes, wounding him.
Fuentes' accomplice, waiting in the car in which the pair
had arrived at the scene, backed up toward Fuentes. Fuentes
threw his gun into the car and attempted to get in through the
passenger side window. He could not. The accomplice then left
at high speed, initially dragging Fuentes alongside the car.
After he fell to the pavement, Fuentes was detained by Marquez
until local police officers arrived and took him to a hospital.
The circumstances surrounding the shooting by Marquez are
disputed. Fuentes maintains that, after obtaining Marquez's keys
and wallet, he sensed that Marquez's behavior suggested police
training, and so he decided to abort the robbery. He claims to
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have been shot in the back while running toward the get-away car.
Marquez contends that he fired his weapon at Fuentes while the
defendant was leaning toward him in a half-crouch and pointing
his gun at the agent. The government claims the shot hit Fuentes
in the chest.
Each version has some documentary support. The government
points to a doctor's report from Puerto Rico Medical Center
describing Fuentes' injury as "GSW [Gun Shot Wound] to chest."
Another report from the hospital, however, includes a diagram
explicitly labeling a spot on Fuentes' back as the "orefice of
entrance" and a similar spot on his chest as the "orefice of
exit." His "Discharge Summary" also states that he received a
gunshot wound to his back.
Fuentes pled guilty to a single count of carjacking under 18
U.S.C. 2119. In his presentence report, the probation
department recommended against an adjustment in sentence for
acceptance of responsibility in part because Fuentes had provided
conflicting versions of the events of the crime. The report
noted that he was claiming to be the sole participant in the
carjacking and that he had been shot in the back by Marquez.
In a separate section addressing factors that may warrant a
departure from the applicable guidelines range, the report noted
that the court could consider an upward departure because the
offense conduct involved potential risk of harm to innocent
bystanders. The report continued:
The potential exchange of gunfire, the shots fired by
the special agent in self-defense, and the acceleration
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of the getaway car in a normally highly congested area
could have had serious consequences. Although the
guideline for the offense of conviction, in and of
itself, has considered varying harms to the carjacking
victim, the guideline provisions do not cover harm or
potential injury to others in the course of committing
the offense.
In his response to the presentence report, Fuentes objected
only to the acceptance of responsibility conclusion. His counsel
explained in the response that there apparently had been a
misunderstanding concerning Fuentes' statements to the probation
officer regarding an accomplice: Fuentes actually had
acknowledged that another person was involved but claimed that
that individual remained in the car during the attempted
carjacking. As for where Fuentes was shot, counsel submitted
copies of the medical records previously described, and noted
that they "clearly indicated that he was shot in the back."
At the sentencing hearing, Fuentes' attorney reminded the
court of the objection regarding acceptance of responsibility and
urged the court to find that Fuentes had demonstrated "a genuine
personal responsibility for his actions" based on a sworn
statement that he had submitted recounting his version of the
crime and on statements made to the probation officer.
The court seemingly accepted the attorney's entreaty,
responding with the following comment:
All right, in essence that is a modification to the
information contained in the pre-sentence report, but
aside from that, any other changes as to the
information contained in the pre-sentence report?
The attorney expressed no further concerns, and the court went on
to impose sentence. Beginning with a base offense level of 20,
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see 2B3.1(a), the court added five levels for the specific
offense characteristic of brandishing a firearm and then deducted
three levels for acceptance of responsibility. The resulting
base offense level, 22, produced a guideline range of 41 to 51
months. The court then turned to consideration of an upward
departure and, essentially adopting the language of the
presentence report,1 added a two-level departure to increase the
imprisonment range to 51 to 63 months. The court imposed the
maximum. No objection was raised to the departure.
On appeal, Fuentes claims that the departure was improper
both legally and factually. He asserts that the risk of harm to
others is commonplace in the crime of armed carjacking, and it is
therefore inappropriate to add to the guidelines range on that
basis. Additionally, Fuentes argues that Agent Marquez fired his
weapon without cause -- since he, the perpetrator, was retreating
1 The court stated it would consider a departure
on the basis that the offense conduct
involv[ing] potential risk of harm to
innocent by-standers such as pedestrians,
patrons or drive-by motorist[s] during the
commission of the instant offense, the
potential exchange of gun fire, shots fired
by a Special Agent in self defense and the
acceleration of the getaway car within an
area known for its high concentration of
people, could have led to serious bodily
injury or life threatening consequences to
any individual.
The Guideline for the offens[e of]
conviction in and by itself has considered
harm to the car jacking victim, the Guideline
provisions do not cover harm or potential
injury to others in the course of committing
the offense, thus the Court imposes a 2 level
departure enhancement . . . .
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from the crime scene -- and Fuentes consequently should not be
blamed for the risk to bystanders from the shooting.
II. Discussion
We begin by noting the limited range of our review.
Sentencing challenges, like other issues arising from criminal
convictions, may not be raised for the first time on appeal.
United States v. Dietz, 950 F.2d 50, 55 (1st Cir. 1991). An
unpreserved claim will be considered only in order to prevent a
"miscarriage of justice." United States v. Agoro, 996 F.2d 1288,
1291 (1st Cir. 1993).
So far as we can tell from the record, the claim brought by
Fuentes on appeal was never presented to the district court. As
described above, his response to the presentence report and the
colloquy at the sentencing hearing focused solely on his
entitlement to the three-level adjustment for acceptance of
responsibility. Although his appellate argument on departure
implicates some of the same facts relevant to acceptance of
responsibility -- most notably, the circumstances surrounding the
shooting -- the court's attention was never directed to the
problems Fuentes now ascribes to its decision to depart. Indeed,
counsel may well have made a deliberate decision not to challenge
the court's statement that Agent Marquez shot Fuentes in self-
defense for fear that it would raise anew the acceptance of
responsibility issue. Even with the two-level upward departure,
Fuentes came out ahead with the three-level acceptance of
responsibility adjustment.
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In any event, the departure is supportable even under the
standard applicable to fully preserved claims of error. Our
typical review of departure decisions involves a three-step
analysis:
(1) whether the reasons the court gave for departing
are of the sort that might permit a departure in an
appropriate case; (2) whether the record supports a
finding of facts demonstrating the existence of such
reasons; and (3) whether, given the reasons, the degree
of departure is reasonable.
United States v. Mendez-Colon, 15 F.3d 188, 189 (1st Cir. 1994).
The district court felt that a departure was appropriate
because commission of an armed hijacking in a busy commercial
area created an unusually high risk of harm to bystanders and
nearby motorists. We agree that this is a permissible basis for
departure. The robbery guideline, which is the one applicable to
carjackings,2 provides for an increase in sentence based on
actual injury only to the victim of the crime. See
2B3.1(b)(3). In addition, the section of the guidelines
discussing appropriate grounds for departure notes as an example
that "because the robbery guideline does not deal with injury to
more than one victim, departure would be warranted if several
persons were injured." See 5K2.0 (Policy Statement). No
reference is made to possible innocent bystanders, and we
therefore think it clear that the guideline itself does not take
2 This guideline was amended in 1993 explicitly to cover
carjackings. See 2B3.1(b)(1)(B).
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into account harm to individuals other than the victim or
victims.
We also must consider whether creation of a risk to others,
rather than causing them actual harm, is sufficient to warrant an
increased sentence. Fuentes claims that such a risk is an
ordinary feature of an armed carjacking, and that its presence
therefore should not trigger a departure from the carefully
calibrated guidelines punishments. This contention is
contradicted, however, both by the applicable guideline's focus
on the victim and by commentary in the Sentencing Guidelines on
the relevance of the risk created in a criminal encounter. The
Commentary to 1B1.3 states that when a specific guideline
addresses only harm sustained,
the risk created enters into the determination of the
offense level only insofar as it is incorporated into
the base offense level. . . . When not adequately
taken into account by the applicable offense guideline,
creation of a risk may provide a ground for imposing a
sentence above the applicable guideline range.
1B1.3, comment. (n.5). The robbery guideline is cited as one
that refers only to actual harm.
Because we have concluded that the offense level does not
contemplate impact on anyone other than the targeted carjacking
victims, the risk created to bystanders necessarily was not taken
into account in setting the punishment. We think it therefore
within the trial court's authority to depart from the guidelines
when the offense conduct creates a substantial risk to others, as
when an armed carjacking is committed in a busy commercial area.
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Having concluded that the reasons the court gave for
departing are "of the sort that might permit a departure in an
appropriate case," Mendez-Colon, 15 F.3d at 189, we next must
consider whether such circumstances actually exist in this case.
In explaining the decision to depart, the district court noted
the "potential exchange of gun fire," the actual shots fired by
the special agent "in self defense" and the acceleration of the
getaway car "within an area known for its high concentration of
people." Fuentes' challenge centers on the shooting: he claims
that the danger to bystanders arose not from his conduct but from
the agent's unjustified shooting as he, Fuentes, was retreating
from the confrontation.
As previously noted, a factual dispute exists concerning the
circumstances surrounding the shooting. Although a court
normally should make factual findings on contested matters
related to sentencing, see Fed. R. Crim. P. 32 (C)(1), we are
untroubled here by the court's omission both because Fuentes
failed to draw the issue to its attention and because the risk
originated with Fuentes and his undisputed brandishing of a
firearm. On the question of potential harm to others, it is of
little moment whether Marquez was justified in shooting when he
did. A defendant who attempts a carjacking in a heavily
congested area while wielding a firearm has created a risk that
innocent persons will be harmed by a precipitous act that
triggers use of his or someone else's weapon. This, it seems to
us, was the district court's primary concern. Whether a shooting
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actually occurred, and how, are matters we think more relevant in
reviewing the extent of the departure than in determining whether
a departure is permissible at all.
And, as for the degree of departure here, we think it was
eminently reasonable. The court used as an analogy the guideline
section providing for an increase of two levels if the defendant
recklessly created a substantial risk of death or serious bodily
injury to another person while in flight from a crime. See
3C1.2. Assuming that the court would have imposed the maximum
term with or without the departure, the increase from the
departure was therefore 12 months. We think this a judicious and
supportable additional penalty.3
One additional aspect of this case makes its result even
more clearly correct. Ironically, it appears that the two-level
increase in base offense level achieved through the departure
actually should have been imposed under a requirement of the
guidelines overlooked by both the probation office and the court,
and never addressed by the parties. In November 1993, three
months before the incident at issue in this case, 2B3.1 -- the
robbery guideline -- was amended to include specific reference to
carjacking, a crime that had been added to the criminal code a
year earlier. See generally United States v. Singleton, 16 F.3d
1419, 1424-25 (5th Cir. 1994). Subsection (b) of 2B3.1 lists
"specific offense characteristics" that trigger increases to the
3 Indeed, part of the court's rationale for the departure --
the risk created by the high-speed flight -- falls directly
within 3C1.2.
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base offense level of 20. The section as amended in 1993 states
that if the offense at issue involved carjacking, the base
offense level should be increased by two levels.
2B3.1(b)(1)(B). By departing upward, therefore, the district
court simply achieved what should have been the proper baseline
sentencing range.
For the foregoing reasons, the judgment of the district
court is affirmed.
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