Unpublished Disposition, 928 F.2d 1137 (9th Cir. 1990)

MEMORANDUM^* 

Socorro Aguilar appeals a $33,580.00 fine imposed by the district court pursuant to United States Sentencing Guidelines Sec. 5E1.2. The fine was imposed upon Aguilar's plea of guilty to one count of possession with intent to use unlawfully and transfer unlawfully five or more false United States immigration documents in violation of 18 U.S.C. §§ 1028(a) (3) and 1028(b) (2) (B). We affirm.

FACTS

Socorro Aguilar was engaged in an alien smuggling operation. Acting on a tip from a confidential informant, the Immigration and Naturalization Service (INS) enlisted Aguilar's assistance in smuggling an undercover INS agent and the confidential informant across the United States border at the San Ysidro port of entry. For her services Aguilar received $1,000.00 in marked $100.00 bills.

Based on these events, the INS obtained a search warrant for Aguilar's residence. Upon executing the search warrant, INS agents discovered 64 false United States immigration documents and $33,580.00 in cash in the master bedroom of Aguilar's home.

Aguilar pleaded guilty to one count of possession with intent to use unlawfully or transfer unlawfully five or more false United States immigration documents. On January 16, 1990, Aguilar was sentenced to 10 months in custody, one year of supervised release, and a fine of $33,580.00--exactly the amount of money found in her home. At Aguilar's request, the district court subsequently conducted a hearing with regard to the amount of the fine. On January 31, 1990, the district court upheld imposition of the $33,580.00 fine. Aguilar timely appealed.¹ 

At the hearing to determine whether the fine was appropriate the government sought to establish several facts through a document styled as a stipulation between the parties, although the "stipulation" was not signed by Aguilar. The facts proffered by the government were:

1. Aguilar had not worked outside the home since at least 1985; her husband was the sole support of the family.

2. The family of seven (some of whom were adults) earned approximately $1,000.00-$1,500.00 on a monthly basis.

3. Aguilar told the undercover agent that her "normal" fee for smuggling was $500.00 per person.

4. Aguilar initially denied having any cash hidden in her home. However, when confronted with the information that INS agents were going to search her home for hidden cash, Aguilar admitted she had $8,000.00 hidden in her home.

5. Several checkbooks and savings account passbooks, along with extensive tax preparation records detailing the depreciation on the Aguilar's duplex home, were discovered during the INS search. These documents indicated that Aguilar had deposited $17,000.00 from the sale of a home into one of the family's checking accounts.

6. In 1988 Aguilar was arrested for possession of 284 false immigration documents. At that time she indicated to arresting officers that she "rented" the documents for between $45.00 and $140.00 per document.

7. One of the marked $100.00 bills given to Aguilar as payment by the INS was found among the cash hidden in her master bedroom.

Although the government's stipulation was not signed by Aguilar, the district court did ask her if she agreed with the facts it presented. Aguilar stated that she had no objection to the first six points. However, she stated that she believed the government discovered the marked $100.00 bill in the money she was personally carrying at the time of her arrest. The government then called an INS agent to testify that the money was found in one of the larger amounts of cash in the master bedroom. On cross-examination, the agent admitted that he, personally, had not placed the money in the seizure bags, but that when he and his supervisor opened the bags upon returning to their office, the marked bill was in one of the bags containing the larger amounts of cash.

Aguilar presented two notarized statements from family friends who claimed that $9,800.00 of the money discovered belonged to them. She also asserted that $17,000.00 of the money represented the proceeds from the sale of a home she owned in Los Angeles. The government presented evidence which showed that the $17,000.00 was deposited into Aguilar's checking account.

The district court found that the marked bill was found in the larger amounts of cash in the bedroom and not on Aguilar's person. Then, placing emphasis on Aguilar's "financial sophistication", the court determined:

" [I]n view of the government's proffer, in view of this statement attributable to two persons by [Aguilar], I would find that these moneys that were [seized] in the house were a product of the illegal activity; and I would find that they would be the pecuniary gain to [Aguilar]."

Aguilar raises two issues on appeal. First, she argues that the Guidelines define pecuniary gain as gain from the "offense of conviction" and not simply from illegal activity. In this regard she asserts that the district court failed to bring the cash found inside her home within the definition of pecuniary gain because it did not determine the money to have been generated exclusively from the offense of conviction.

Second, Aguilar argues that the government's attempt to prove the money is pecuniary gain to her is an attempt to prove an aggravating factor under the Guidelines. Aguilar asserts that such factors must be proved by at least a preponderance of the evidence, and the government did not meet that burden here.

A. Standard of Review.

Aguilar contends that the district court erred in determining the money found in her home was pecuniary gain to her. The alleged misapplication of the Guidelines in this instance raises a question of fact--i.e. was the money pecuniary gain? We review the district court's findings of fact for clear error. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989); United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989).

B. Definition of Pecuniary Gain.

Section 5E1.2 of the Guidelines provides in pertinent part:

(a) Except as provided in subsection (f) below, the court shall impose a fine in all cases. ...

(c) (1) The minimum of the fine range is the greater of:

(A) the amount shown in column A of the table below; or

(B) the pecuniary gain to the defendant, less restitution made or ordered.

In Aguilar's case, the minimum fine in column A of the table is $1,000.00--based on Aguilar's adjusted base offense level of nine. The district court was required by the Guidelines to impose a minimum fine of the greater of $1,000.00 or the pecuniary gain to the defendant. Once the district court determined the $33,580.00 to be the pecuniary gain it was required to impose that amount, at minimum, as Aguilar's fine. Aguilar argues that the district court failed to abide by the Guidelines' definition of pecuniary gain in determining the $33,580.00 to be the pecuniary gain, and therefore her fine is erroneous. For the reasons given below, we reject Aguilar's argument.

Section 5E1.2 does not specifically define the term "pecuniary gain." Note 3 of the Commentary to Sec. 5E1.2, indicates that the term is taken from 18 U.S.C. § 3571(d) and its language:

[I]f any person derives pecuniary gain from the offense, ... the defendant may be fined not more than the greater of twice the gross gain or twice the gross loss ... [Emphasis added].

Further, the Background Notes to Sec. 5E1.2 state:

The Commission has not attempted to define gain or loss precisely. It is expected that the terms will be used flexibly and consistently with their use in the criminal code, including former 18 U.S.C. § 3623(c) (1).

Former 18 U.S.C. § 3623(c) (1) provides no additional guidance in determining the definition of pecuniary gain, as the relevant language of Sec. 3571(d) is identical to, and was taken verbatim from, former Sec. 3623(c) (1).

Aguilar argues that the term pecuniary gain as used in Sec. 3571(d) refers only to the gain from the "offense of conviction." We may assume without deciding that this is correct, because even so, the district court did not err in calculating her fine.

Aguilar argues that the district court erred by failing to determine the $33,580.00 to have been generated "exclusively" from her "offense of conviction". Instead, Aguilar asserts, the district court determined the money to be a product of her "illegal activity".

However, Aguilar pleaded guilty to possession with intent to use unlawfully and transfer unlawfully five or more false United States immigration documents. INS agents discovered 64 false documents in her home. Significantly, one of the marked $100.00 bills paid to Aguilar by INS agents was found among the money seized in her master bedroom, the same place where INS agents discovered the false documents. The evidence received by the district court indicated that Aguilar's "normal" fee for the use of these documents was $500.00 per person, and that she had been involved in this "business" since 1988 when she was arrested in possession of 284 false documents which she was then "renting" for between $45.00-$140.00. In addition, the evidence indicated that the documents were returned to Aguilar upon their users' successful entrance to the United States, thereby becoming available for repeated use. Even assuming each document discovered in Aguilar's home was used just once, at the going rate of $500.00 Aguilar would have gained $32,000.00.

Given the inevitable uncertainty involved in assessing how much money has been derived from particular criminal conduct, the district court's determination that the "pecuniary gain" to Aguilar from the "offense of conviction" was $33,580.00 was not clearly erroneous.¹ 

Aguilar's second argument is that the government's attempt to prove the money found in her home was pecuniary gain is an aggravating factor upon which it should bear the burden of proof by at least a preponderance of the evidence. She also argues that the government did not meet this burden. This argument is without merit.

As discussed above, section 5E1.2 requires that the minimum fine a district judge may impose is the greater of the pecuniary gain or an amount listed in the section's standardized tables. The district court's factual finding that the money was the pecuniary gain to Aguilar did not aggravate her fine; it merely established it within the mandate of the Guidelines.

In any event, the government must prove the money to be the pecuniary gain to Aguilar by a preponderance of the evidence. Thus, Aguilar's argument, even if correct, would not change the burden of proof the government must meet. Our determination that the district court's decision is not clearly erroneous forecloses any argument that the government did not meet its burden of proof in this instance.

The district court's decision to impose a $33,580.00 fine is therefore affirmed.

AFFIRMED.