Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1990)

MEMORANDUM^** 

Marcial Reyes-Ruiz appeals the district court's upward departure from the range imposed under the Sentencing Guidelines for his conviction of transporting illegal aliens. We affirm.

* On April 30, 1990, at approximately 2:15 a.m., Reyes-Ruiz ran the immigration checkpoint at San Clemente, California at a high rate of speed, nearly hitting a checkpoint agent. When pursued by a Border Patrol agent, Reyes-Ruiz attempted to evade apprehension for approximately three miles by driving at speeds of up to ninety miles per hour and passing other cars on the shoulder. After exiting the freeway at approximately eighty-five miles per hour, Reyes-Ruiz abandoned the car while it was still moving and fled on foot. After he was captured by the Border Patrol agent and taken into custody, two illegal aliens were discovered in the car.

Reyes-Ruiz was tried and convicted of two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). The pre-sentence report (PSR) calculated a sentencing range, pursuant to the Sentencing Guidelines, of six to twelve months, but recommended an upward departure to concurrent twenty-four month sentences on the ground that Reyes-Ruiz' attempt to escape arrest endangered the lives of the aliens in the car and of innocent people on the road. Although Reyes-Ruiz filed an objection to the PSR, the district court accepted the recommendation in the PSR and sentenced Reyes-Ruiz to two twenty-four month sentences, to be served concurrently. Reyes-Ruiz appeals the district court's upward departure.

II

We review district court departures from the guidelines under the five-step standard enunciated in United States v. Lira-Barraza, 897 F.2d 981, 983-86, reh'g granted, 909 F.2d 1370 (9th Cir. 1990). The first step requires us to determine whether the district judge adequately stated the reasons for departure. In the present case, the judge stated that Reyes-Ruiz' attempt to escape and the resulting high-speed chase and reckless driving jeopardized the lives of the aliens in the car and the innocent people on the freeway. He stated that these were aggravating circumstances not taken into account by the Commission in formulating the Guidelines and that they were sufficient to justify an upward departure. Reporter's Transcript (RT), Sentencing Proceedings at 6. This satisfies the first requirement of Lira-Barraza.¹ 

We must next determine whether the district court clearly erred in finding that the aggravating circumstances existed. Lira-Barraza, 897 F.2d at 984. Reyes-Ruiz suggests that the district court erred in determining that he drove at a dangerous rate of speed because the car he was driving was a "much older model" (it was a 1976 Datsun), "more than likely incapable" of driving ninety miles per hour. The Border Patrol agent who pursued Reyes-Ruiz testified to the speed of the chase and the manner in which Reyes-Ruiz was driving. RT at 5-7.²  These facts were also included in the PSR. Reyes-Ruiz does not indicate any evidence that the car was incapable of attaining the speeds suggested beyond the conclusion that it is "unlikely." The district court did not err in relying on this fact. See United States v. Montenegro-Rojo, 908 F.2d 425, 428-29 n. 3 (9th Cir. 1990) (court did not err in relying on facts in the presentence report where defendant disputed them without presenting any contradictory evidence).

The third Lira-Barraza step requires us to review de novo the district court's determination that the aggravating circumstance was of a kind or degree "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." Lira-Barraza, 897 F.2d at 984. We have previously upheld upward departures based on the fact that a defendant attempting to evade arrest drove a car at speeds endangering the lives of alien passengers. See United States v. Rodriguez-Castro, 908 F.2d 438, 441 (9th Cir. 1990); Lira-Barraza, 897 F.2d at 987; United States v. Ramirez-De Rosas, 873 F.2d 1177, 1179 (9th Cir. 1989). Furthermore, the Sentencing Commission expressly stated that it did not consider "offenses involving ... dangerous ... treatment of aliens." Sentencing Guidelines Sec. 2L1.1, Application Note 8.

The fourth step requires us to review for abuse of discretion whether the aggravating circumstance should result in departure. Lira-Barraza, 897 F.2d at 985. Reyes-Ruiz argues that the district court abused its discretion because the chase "lasted but a few minutes" and there was no evidence that his actions endangered the aliens or the public at large. In Rodriguez-Castro, we upheld an upward departure where the defendant transporting illegal aliens led Border Patrol agents on a three mile chase. 908 F.2d at 440. In Ramirez-De Rosas, we upheld an upward departure based in part on the fact that the defendant's high-speed attempt to evade arrest endangered others on the highway despite the fact that the chase took place at 2:30 a.m. 873 F.2d at 1178. In the present case, the chase covered three miles and there was testimony that Reyes-Ruiz had to move onto the shoulder of the freeway in order to pass other cars. The district court did not abuse its discretion.

Finally, we must review for abuse of discretion the extent of the departure. The departure in the present case was not greater than in Rodriguez-Castro, where we upheld a departure to a fifty-four month sentence from the guideline range of twelve to eighteen months. 908 F.2d at 442. The district court did not abuse its discretion.

The twenty-four month sentence imposed by the district court is AFFIRMED.