Unpublished Disposition, 904 F.2d 41 (9th Cir. 1988)

MEMORANDUM^* 

Appellant Mary Jessica Corona pled guilty to the crime of importation of a controlled substance. After determining that the applicable Guidelines range was 27 to 33 months, the district judge departed upwardly and imposed a sentence of 41 months in light of the circumstances surrounding appellant's arrest. Corona now appeals the upward departure and claims, in addition, that the district court erred in failing to take account of her minor participation in the criminal enterprise and in calculating her criminal history level. We affirm.

Factual and Procedural Background

On October 22, 1988, appellant, accompanied by her 4-month-old daughter and 3-year-old niece, drove into the Port of Entry in San Ysidro, California. She stated to the Customs agent that she was only carrying groceries in the vehicle. The agent proceeded to search the trunk area of the car when she noticed a suspicious amount of distance between the rear wall of the trunk and the rear seat. She then referred appellant to a secondary location where a more thorough search could be conducted.

Upon leaving the primary inspector's station, Corona took off at a high rate of speed in an effort to evade further inspection. Law enforcement officials gave chase as Corona proceeded north on I-805, through a busy intersection, and then back over the freeway. Her vehicle subsequently stopped when its engine "blew up." The officers then pulled up the seat and uncovered seven packages of marijuana totaling 17.96 kilograms.

Appellant was then arrested and admitted to Customs agents that she was smuggling marijuana for a payment of $200. She further admitted that she had intended to drive two more cars across the border under similar circumstances.

On November 2, 1988, a 2-count indictment was filed in federal district court alleging importation of a controlled substance (Count I) and possession of a controlled substance with intent to distribute (Count II). On December 15, 1988, appellant pled guilty to Count I. The presentence report listed Corona's criminal category as "5," resulting in a sentencing range of 33 to 41 months under the Guidelines. Judge Keep struck the point added for appellant's failure to appear in court thereby reducing the Guidelines range to 27 to 33 months (criminal category "4"). She then imposed a sentence of 41 months, which she explained as follows:

I find this chase just very egregious.... Ms. Corona put a baby and a toddler in the car, presumably to look like a mother that went down to Tijuana to do some shopping ... and, when she was pulled over, she engaged in a high-speed chase down at the port. Those ports are dangerous to bail out on and certainly she was threatening not only her own life but the life of her baby and her toddler, plus other motorists on the road. She didn't stop voluntarily but it's rather because her car bec [a]me disabled and, under the circumstances, I feel that deserves a departure.

Discussion

Under section 3B1.2(a) and (b) of the Guidelines, appellant is entitled to a two-point reduction in her offense level if her participation in the criminal enterprise is determined to have been "minor" and a four-point reduction if it is "minimal." Judge Keep denied Corona's request for either reduction noting that the latter knew that she was involved in a large criminal enterprise and intended to continue her participation. We review this determination under the "clearly erroneous" standard. United States v. Gillock, 886 F.2d 220, 222 (9th Cir. 1989).

Appellant's argument is essentially that she is entitled to a reduction because she was only a courier or "mule" who smuggled a small amount of contraband and "could not be expected to know the full nature and scope of the organization behind it." While the breadth of appellant's knowledge is subject to dispute, she has indicated that she was aware that she was participating in a large operation and that she intended to continue her participation in the future. Additionally, it is specious for Corona to suggest that she was transporting a "small amount" of contraband. She was not caught with a few ounces of marijuana; she was importing approximately 40 pounds of the drug.

Viewed collectively, these considerations preclude a finding of clear error. They also are sufficient to refute Corona's contention that she was merely a "mule" making it unnecessary for us to reach the issue of whether a mule is presumptively or automatically entitled to a reduction in criminal offense level.¹ 

In calculating appellant's criminal history level, the district court added one point for appellant's conviction for California Vehicle Code violations and two more points since the instant offense occurred while she was on probation in San Diego Court Case No. B170420, involving the violation of a Vehicle Code section. Appellant contends that this 2-point addition was improper. We review the district court's determination for clear error. United States v. Sanchez-Lopez, 879 F.2d 541, 557 (9th Cir. 1989).

Appellant argues that the 2-point addition was error since she "may not have been on probation at all" at the time the instant offense was committed. This contention is a bit peculiar since her counsel acknowledged, at the sentencing hearing before Judge Keep, that Corona was in fact on "summary probation to the court" in accordance with "standard operating procedure" with respect to such violations. Corona's probationary status was also recognized in her objections to the presentence report where her counsel argued that while appellant appeared to be "technically on probation [for a Vehicle Code violation] ... this is not the type [of] case envisioned by the sentencing commission as justifying two additional criminal history points." Thus, in light of the foregoing, the district court's calculation of appellant's criminal history in accordance with Guidelines Secs. 4A1.1(c), (d) was not clearly erroneous.

As mentioned earlier, the district court altered the presentence report's criminal history calculation by striking one point. The appropriate Guidelines range was thereby reduced to 27 to 33 months. The district court then departed upwardly, imposing a sentence of 41 months based on the high-speed chase along busy thoroughfares with young children in the car.

In reviewing a sentence outside the Guidelines range, this court "must initially determine whether a departure is permissible on the grounds articulated by the district court." United States v. Michel, 876 F.2d 784, 786 (9th Cir. 1989). This review is conducted de novo. United States v. Nuno-Para, 877 F.2d 1409, 1413 (9th Cir. 1989). If grounds for the upward departure exist, the court must them decide whether the district judge abused her discretion by imposing a sentence which is unreasonable. United States v. Lira-Barraza, 897 F.2d 981, 986 (9th Cir. 1990).

There is no doubt as to the propriety of the enhancement in the instant case. In United States v. Ramirez-DeRosas, 873 F.2d 1177 (9th Cir. 1989), the court upheld a sentence of 30 months when the Guidelines range was 0-4 months where the appellant had engaged law enforcement officials in a high-speed chase down the interstate in an attempt to smuggle illegal aliens into the country. In the instant case, the enhancement was far less substantial and the facts warranting an upward departure were far more compelling. Corona not only engaged the police in a high-speed chase; she did so with an infant and toddler in the car and, at one point, barreled through a busy intersection endangering the lives of the children as well as other motorists. Under these circumstances, it cannot be said that an 8-month departure was unreasonable in light of Ramirez-DeRosas.

Conclusion

For the foregoing reasons, the decision of the district court is affirmed.

AFFIRMED.