Unpublished Disposition, 911 F.2d 739 (9th Cir. 1990)

MEMORANDUM^*

Appellant Juan Ramirez-Rodriguez ("Ramirez") appeals the district court's upward departure from the Sentencing Guidelines.

We affirm.

BACKGROUND

Ramirez pleaded guilty to one count of harboring illegal aliens in violation of 8 U.S.C. § 1324(a) (1) (C) and 18 U.S.C. § 2. The pre-sentence report, upon which the district court relied, outlined a scheme whereby Ramirez and two co-defendants helped guard and transport illegal aliens who were being held against their will.

The victims contracted with an alien smuggler to be brought into this country and eventually transported to the Los Angeles area. Instead, they crossed the border and were brought to a house in San Diego. Upon their arrival the victims were locked in a bedroom with approximately twenty other aliens.

The victims were verbally threatened with bodily harm. At least one of the Ramierz' co-defendants carried a gun. One of the victims was sexually assaulted by one co-defendant and raped, sodomized and robbed by another. While Ramirez did not participate in either the sexual assault or the rape, he helped separate the rape victim from her husband so that the rape would be easier to facilitate.

Two other victims were taken in a van and abandoned in the South Bay area--yet another was told to hand over all his money. When it became evident that he did not have any money, he was robbed of his wrist watch. The victims were not allowed contact with their relatives nor were they given an opportunity to arrange the payment for the completion of the smuggling operation. They were rescued when one of the men who was abandoned in the South Bay area contacted the police.

Ramirez and his two co-defendants were arrested and transported to the Metropolitan Correctional Center. Although he admits having committed the crime, Ramirez testified at the probation interview that he " [did] not believe that he did anything wrong."

The base offense level for harboring illegal aliens is nine. The pre-sentence report gave appellant two additional points for "Restraint of a Victim", pursuant to the United States Sentencing Guidelines (the "guidelines") Sec. 3A1.3. This adjustment applies to any offense in which a victim was physically restrained. Ramirez' criminal history was calculated as Level I. In light of his statement that he did not do anything wrong, the court declined to reduce Ramirez' offense level by two points for acceptance of responsibility. Ramirez' total point count of 11 resulted in a pre-departure sentencing guideline range of eight to fourteen months.

Probation recommended an upward departure to twenty-one months in custody in light of the fact that Ramirez' conduct was extremely cruel and degrading and that the victims were subject to humiliating events. On November 13, 1989 the district court sentenced appellant to eighteen months confinement and three years supervised release which would be waived upon appellant's deportation stating that:

The Court finds that the presentence report is correct and the probation department has correctly computed the guidelines in this case. The Court further feels that an upward departure from the guidelines is appropriate under 5(k)2.0, specifically that there is--or are aggravating circumstances in this case which were not adequately taken into consideration by the sentencing commission in formulating the guidelines. Specifically, the conduct the Court has in mind is the conduct referred to on page 11 of the presentence report, lines 30 through 52, specifically, that the defendant was involved in a serious offense wherein several victims were subjected to cruel and humiliating experiences and, of course, were restrained against their will.

(RT 11/13/89 at 6).

Ramirez makes three arguments. First, that the district court did not properly state specific reasons for imposing his sentence. Second, that the sentence imposed was improper under the guidelines because the physical restraint factor was considered twice--once by probation which increased his base level from nine to eleven and once by the court in upwardly departing. Third, that he was improperly denied a two point reduction for acceptance of responsibility.

ANALYSIS

We review district court departures from the guidelines under the five-step analysis set out in United States v. Lira-Barraza, 897 F.2d 981, 983-986 (9th Cir. 1990). We determine:

(1) whether the district judge adequately identified the "aggravating or mitigating 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.

Our review is de novo in the first and third steps, clearly erroneous in the second step, and steps four and five are reviewed for an abuse of discretion. United States v. Gomez, No. 89-50254 slip op. at 3226 (9th Cir. April 2, 1990).

First, contrary to Ramirez' assertions, the district court judge stated that he adopted the presentence report and was departing from the guidelines because "defendant was involved in a serious offense wherein several victims were subject to cruel and humiliating experiences and, of course, were restrained against their will." (RT 11/13/89 at 6). The district judge further referred to a specific section of the presentence report where appellant was accused of showing "some degree of callousness." Thus, the district court adequately identified the "aggravating circumstance."

Second, appellant's counsel stated he had no argument with the facts stated in the presentence report. See RT 11/13/89 at 2. Thus, there was no dispute that the aliens were held against their will and that verbal threats were made with a gun present. Nor did Ramirez dispute that at least two victims were robbed and that one was raped and sodomized. It was not clearly erroneous for the district judge to conclude that this method of harboring the aliens was humiliating, degrading and inhumane.

Third and fourth, the guidelines specifically indicate that inhumane treatment was not taken into account by the Sentencing Commission in setting the offense level for harboring illegal aliens. See U.S.S.G. Sec. 2L1.1., Application Note 8 (" [t]he Commission has not considered offenses involving ... dangerous or inhumane treatment. An upward departure should be considered in those circumstances"); Gomez slip op. at 3227; United States v. Ramirez-De-Rosas, 873 F.2d 1177, 1178 (9th Cir. 1989). Therefore, a departure was warranted under these circumstances.

Moreover, there was no error in the district court considering the restraint issue after probation tacked on a two point adjustment for victim restraint. U.S.S.G. Sec. 5K2.0 states that "the court may depart from the guidelines, even though the reason for departure is listed elsewhere in the guidelines (e.g., as an adjustment or specific offense characteristic), if the court determines that, in light of unusual circumstances, the guideline level attached to that factor is inadequate." Moreover, U.S.S.G. Sec. 3A1.3, Application Note 3 specifically states that " [i]f the restraint was sufficiently egregious, an upward departure may be warranted. See Sec. 5K2.4 (Abduction or Unlawful Restraint)." Thus, the Commission contemplated that both a victim restraint adjustment and an upward departure might be applicable in certain circumstances.

Abduction or Unlawful Restraint (Policy Statement)

If a person was abducted, taken hostage, or unlawfully restrained to facilitate commission of the offense or to facilitate the escape from the scene of the crime, the court may increase the sentence above the authorized guideline range.

In addition, U.S.S.G. Sec. 5K2.8 states:

Extreme Conduct (Policy Statement)

If the defendant's conduct was unusually heinous, cruel, brutal, or degrading to the victim, the court may increase the sentence above the guideline range to reflect the nature of the conduct. Examples of extreme conduct include torture of a victim, gratuitous infliction of injury, or prolonging of pain or humiliation.

Both these grounds are applicable in the instant case. Ramirez and his cohorts did not simply restrain their victims, they robbed and verbally and physically abused them. Although Ramirez was not directly involved in the physical abuse, he participated in transporting the rape victim's husband away from her so that the rape would be easier to facilitate. This behavior was egregious enough to warrant an upward departure.

Fifth, the extent or degree of departure was not unreasonable. Without the upward departure, Ramirez' exposure was eight to fourteen months. The court added four levels for an offense level of 15 which gave Ramirez a guideline range of eighteen to twenty-four months and imposed a custodial sentence of eighteen months. Eighteen months is well within the statutory maximum of sixty months. 8 U.S.C. § 1324(a) (1) (c) (1988).

Ramirez also argues his sentence is unreasonable because he did not receive a two point reduction on his offense level for acceptance of responsibility. To qualify for a two point reduction a defendant must "clearly demonstrate a recognition and affirmative acceptance of personal responsibility." U.S.S.G. Sec. 3E1.1(a). While admitting he committed the crime, Ramirez also informed probation that he did not think he had done anything wrong. Under the circumstances, we do not find that the district court was clearly erroneous in failing to grant a two point reduction. See United States v. Gonzalez, No. 89-50131 slip op. at 2487 (9th Cir. March 7, 1990).

Ramirez' sentence is AFFIRMED.