United States of America, Plaintiff-appellee, v. Alejandro Sanchez-ovieda, Defendant-appellant.united States of America, Plaintiff-appellee, v. Alejandro Sanchez-ovieda, Defendant-appellant, 990 F.2d 1265 (9th Cir. 1993)

MEMORANDUM^** 

Alejandro Sanchez-Ovieda appeals his sentence under the United States Sentencing Guidelines, imposed following a guilty plea, for transporting illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (B). Sanchez-Ovieda contends that the district court erred by not stating its reasons for the extent of the upward departure from the applicable Guidelines range. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

We consider the following three-part test in evaluating a district court's decision to depart upward from the applicable Guidelines range: (1) we review de novo whether the district court identified an aggravating circumstance of a kind or degree not adequately taken into account by the Sentencing Commission; (2) we review for clear error the district court's factual findings supporting the existence of the aggravating circumstance; and (3) we review for abuse of discretion whether the extent of the departure was reasonable. United States v. Cruz-Ventura, No. 91-50720, slip op. 11455, 11459 (9th Cir. Sept. 22, 1992); United States v. Ramirez-Jiminez, 967 F.2d 1321, 1328 (9th Cir. 1992).

a. Authority to Depart/Factual Findings

Here, the district court identified Sanchez-Ovieda's participation in a dangerous high speed chase with seven illegal aliens in the truck as the aggravating circumstance. The Guidelines allow the district court to consider an upward departure in these circumstances. See U.S.S.G. § 2L1.1, comment. (n. 8); see also Cruz-Ventura, No. 91-50720, slip op. at 11464. Sanchez-Ovieda does not dispute the factual circumstances on which the district court based its decision to depart. Therefore, the first two prongs of the test are satisfied. See Cruz-Ventura, No. 91-50720, slip op. at 11464; see also Ramirez-Jiminez, 967 F.2d at 1328.

b. Extent of the Departure

Sanchez-Ovieda contends that the district court erred by not stating its reasons for the extent of the upward departure. We agree.

Here, based on an adjusted offense level of 7 and criminal history category of V, Sanchez-Ovieda's sentencing range was 12 to 18 months imprisonment. See U.S.S.G. § 5A. The district court departed upward by 12 months, imposing a 30-month sentence. The district court, however, failed to articulate any "reasoned explanation" for the extent of the upward departure.

Because the district court failed to tie the extent of the departure to the Guidelines, we vacate the sentence and remand the case for resentencing. See Ramirez-Jiminez, 967 F.2d at 1329. The district court is instructed to provide a reasonable explanation for the extent of the departure by analogy to the Guidelines. See Cruz-Ventura, No. 91-50720, slip op. at 11465.¹ 

VACATED AND REMANDED.