Unpublished Disposition, 902 F.2d 41 (9th Cir. 1990)

MEMORANDUM^* 

Jose Pena-Gonzalez appeals his sentence upon his guilty plea to one count of illegally transporting undocumented aliens in violation of 8 U.S.C. § 1324(a) (1) (B). He asserts that the court's upward departure to forty months imprisonment violated proper procedure and resulted in an illegal sentence. We affirm.

On November 26, 1988, Pena-Gonzalez, accompanied by a person he said was a "guide", drove eleven undocumented aliens across the United States-Mexico border. Pena-Gonzalez, himself an undocumented alien, said he drove the others in payment for his own transportation.

Upon receiving a report that a car matching Pena-Gonzalez's had recently crossed the border, Border Patrol agents located his car and directed him to pull over. He defied the instruction and led the agents on a 25-mile high-speed chase. According to the presentence report, during the chase Pena-Gonzalez pulled into oncoming traffic, drove through several red lights and stop signs, and narrowly avoided hitting several pedestrians. He abandoned his car and attempted to flee on foot, but was captured by two California Highway Patrol officers and a Border Patrol agent.

Pena-Gonzalez pleaded guilty to one count of a two-count indictment charging him with transportation of undocumented aliens in violation of 8 U.S.C. § 1324(a) (1) (B).

At the sentencing hearing, both the prosecutor and the probation officer who prepared the presentence report recommended an upward departure to twenty-four months imprisonment based on Pena-Gonzalez's involvement in a high-speed chase. Pena-Gonzalez stated in mitigation that he had no previous record, and had never before entered the United States. He said he failed to stop when Border Patrol agents directed him to pull over because his guide yelled at him to speed away, and did not know that there were people in the trunk of the car.

The district court announced reasons for an upward departure from Pena-Gonzalez's calculated guidelines range of zero to four months. The court noted that while Pena-Gonzalez was young and did not have a prior arrest record, a departure was justified because of Pena-Gonzalez's involvement in a lengthy high-speed chase that endangered the lives of his passengers and of other drivers.

We review an upward departure from the guidelines according to a five-step process:

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" (hereinafter "circumstance");

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission;

(4) if not, whether the circumstance should result in departure; and,

(5) whether the extent or degree of departure was unreasonable.

United States v. Lira-Barraza, No. 88-5161, slip op. 2407, 2411 (9th Cir. February 28, 1990).

We have previously held that a departure is appropriate where a defendant who is charged with illegally transporting undocumented aliens participates in a high-speed chase. See Lira-Barraza, slip op. at 2420-21. There is nothing in the record to suggest that the district court erred in determining that Peza-Gonzalez's high-speed chase endangered the lives of his passengers and constituted an aggravating circumstance not taken into account by the guidelines. The district court's findings were no less substantial than those in Lira-Barraza.

Pena-Gonzalez argues that the district court should have given weight to his "uncontroverted mitigating proffer" that he was an undocumented alien unfamiliar with the United States, he did not stop as directed by the Border Patrol agent because the guide yelled at him to speed away, and he did not know that passengers were hidden in the trunk of the car. He further argues that the district court should have made findings of fact addressing these factors. While the district court should make findings regarding disputed information "important to the sentencing determination," Sentencing Guidelines Sec. 6A1.3, the information contained in Pena-Gonzalez's "uncontroverted mitigating proffer" was plainly irrelevant to the district court's decision to depart upward because of his well-documented involvement in a high-speed chase.¹ 

Nor was the upward departure to forty months unreasonable. In Lira-Barraza, slip op. at 2410-11, we upheld the district court's upward departure to 36 months from a calculated guidelines range of zero to four months where the defendant participated in a shorter high-speed chase and did not flee on foot after being stopped. Moreover, Pena-Gonzalez's forty-month sentence is well below the statutory maximum of sixty months. 8 U.S.C. § 1324(a).

AFFIRMED.