Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^* 

Julio Martull-Garcia appeals his sentence imposed under the Sentencing Guidelines. He pled guilty to transporting undocumented aliens in violation of 8 U.S.C. § 1324(a) (1) (B). On appeal, he argues that the district court erred in departing upward from the Guidelines and in failing to find that he had accepted responsibility pursuant to Guidelines Sec. 3E1.1(a).

FACTS AND PROCEEDINGS

On May 15, 1989, a border patrol agent on duty about two miles from the Mexican border received a radio transmission that a white sedan was parked nearby and that people suspected of being illegal aliens were being loaded into the sedan. Within a minute after that transmission, the agent saw a heavily-loaded white sedan with five occupants in the back seat who seemed to be trying to avoid detection. They had distinct Latin features, wore more than one layer of clothing, and had dirt and debris on their clothing. The agent clearly saw the driver, Martull. Upon seeing the agent in his marked Ram Charger, the occupants of the sedan looked nervous and "tried to slump down."

His suspicions aroused, the agent made a U-turn and activated his lights. Martull accelerated. He darted in front of another car across traffic and then continued to swerve in and out of traffic. Several people were forced to put on their brake lights. The chase lasted about three miles at a rapid although undetermined speed. Finally Martull drove into the parking lot of an apartment complex. As the agent approached, he fled the car, leaving the engine running, and climbed an eight-foot fence.

Martull was charged with three counts of violating 8 U.S.C. § 1324(a) (1) (B), Transportation of Illegal Aliens. He pled guilty to two counts. The Probation Officer calculated an adjusted offense level of 11 and a criminal history category of IV. This would indicate a Guideline range of 18-24 months. The Probation Officer did not recommend an adjustment for acceptance of responsibility, although she admitted her decision had been a difficult one. Although not recommending departure, she gave two reasons why an upward departure may be warranted. She wrote:

Pursuant to Section 4A1.3, Adequacy of Criminal Record, there were two fairly significant arrests which involved drugs (F13091) and illegal aliens (83-0992-E-1) that were not counted because they did not result in convictions. In both cases, MARTULL was placed in a diversion program. In both cases, the charges were eventually dismissed because the defendant had pled guilty in other matters.¹  The second reason the Court may use to depart upward is described in Section 2L1.1, Application Note 8, which indicates that the Commission had not considered offenses involving large numbers of aliens or dangerous or inhumane treatment. An upward departure should be considered in those circumstances. In this instance, although the defendant was not transporting a large number of illegal aliens, he did drive recklessly and endangered their lives, as well as the lives of the motoring public and the arresting officers.

Presentence Report [PSR] 13.

The Probation Officer's final recommendation was at the top of the Guideline range: 24 months on each count, to be served concurrently. The government, specifically stating that while there had been reckless driving there had not been a high-speed chase, recommended a cap of 24 months.

The district court decided to depart upward to a term of 36 months stating:

The reason I am departing is set out in the probation report. If you had pulled over your car and stopped, you and I would have no problems, none. What I read here is: after the red lights went on, you darted in front of another vehicle with your car, crossed the traffic. You swerved in and out of traffic, drove through and into a parking lot, abandoned the vehicle. The vehicle was still running. You left all those people in the car. They said that you drove with utter disregard of other human beings for three miles. I don't think the Guidelines adequately consider the risk you were to other people entitled to use the highway, the people you held in that car of yours and to yourself.

I said it before; and I will say it again: you are a lucky man you stand here with all your arms and legs, that you really didn't hurt somebody or hurt yourself.

I am going to impose a term of three years in your case.

The reason I am doing it is because of the high-speed chase and the other reasons set out in the probation report.

Mr. Martull, I wish you had pulled over. Maybe it's because of these variety of arrests that you had before that you didn't do it. I don't know. That's in your own mind. I think you are entitled to know what I am doing and why I am doing it. That's why I am telling you these things.

You may not agree with me; but, at least, I want you to know my reaction to this set of facts because I think you are entitled to know them.

Sir?

Mr. Pierce [Assistant U.S. Attorney]: Your Honor, for a clarification of the record, is your Honor also departing on the basis of the inadequate representation of his prior criminal history?

The Court: That is the second reason given by the probation department and that is also my reason for departing.

RT 11/13/89 at 41-2.

Martull timely appealed his sentence.

STANDARDS OF REVIEW

This court reviews a district court's decision to depart from the Sentencing Guidelines according to a five-step test. United States v. Lira-Barraza, 897 F.2d 981, 983 (9th Cir. 1990), reh'g en banc granted, No. 88-5161, slip op. at 9247 (9th Cir. August 14, 1990). First, we determine whether the district court adequately identified the specific aggravating or mitigating circumstance warranting departure, and whether the court made a clear finding that the Sentencing Commission did not adequately consider that circumstance. Id. at 983. See also 18 U.S.C. § 3553(b). Next, we review for clear error whether the circumstance identified by the district court as the basis for departure actually exists. 897 F.2d at 984. Third, we look to see whether this kind or degree of circumstance was "not adequately taken into consideration by the Sentencing Commission in formulating the guidelines" as required by 18 U.S.C. § 3553(b). Id. at 984-5 (quoting 18 U.S.C. § 3553(b)). Then, if we find inadequate consideration by the Commission, we inquire whether the district court's decision to depart constituted an abuse of discretion. Finally, we determine whether the district court clearly stated its reasons for the departure.

Whether a defendant has accepted responsibility for his crime is a factual determination reviewed for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990).

DISCUSSION

A. Step One: Specific Reasons for Departure

The district court in this case gave three reasons for departure: reckless driving, a high-speed chase, and inadequate representation of Martull's prior criminal history. The court's discussion of the reckless driving is quite detailed and though it made only passing reference to a high-speed chase, the record clearly does not show that there was in fact any high-speed chase. Since this circumstance, identified by the court, does not actually exist, step two is not met. See discussion infra.

The district court's discussion of Martull's inadequately-represented prior criminal history consisted merely of a reference to "the other reasons set out in the probation report" and, in response to the U.S. Attorney's inquiry, a statement that " [t]hat is the second reason given by the probation department and that is also my reason for departing." Here, again the judge's reasoning is scant; but we have held that findings are adequate when the district court clearly states that it finds the position as stated in the Probation Office's report to be the correct one. United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990). Judge Enright clearly adopted the reasoning set forth in the Presentence Report at page 13 under the heading of "Factors That May Warrant Departure."

Martull's argument that the reference to the driving and "the other reasons as set forth in the probation report" is "ambiguous and purely speculative," because the Probation Officer did not in the end recommend departure, lacks merit. The Probation Officer clearly identified specific reasons for departure. Her own recommendations, set forth in a different section, merely reflected her personal view as to what would constitute "appropriate and sufficient punishment." PSR 13. "The record at the sentencing hearing reflects no confusion on anyone's part as to what the district court decided." Rigby, 896 F.2d at 394.

With regard to the reckless driving and the prior arrests that did not result in conviction, the district court's findings are not clearly erroneous.

As for the "high-speed chase," Martull argues that the court considered a factor that does not actually exist. The government stipulated that there was no high-speed chase, and defense counsel reminded the court of this stipulation at the sentencing hearing. The border agent who chased Martull had been unable to determine his speed but stated that he was moving rapidly.

It does appear that there was confusion as to the factual situation before the court. The finding of a high-speed chase seems to be clearly erroneous; therefore, we must vacate and remand so that the court can clarify its reasons for departing upward.

With regard to departure on the basis of criminal history, in which we review whether the identified circumstances were not adequately taken into account by the Sentencing Commission, we turn to Sec. 4A1.3 in which the Guidelines specifically authorize departure when the criminal history category is inadequate:

If reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range. Such information may include, but is not limited to, information concerning: ...

(e) prior similar adult criminal conduct not resulting in a criminal conviction....

However, a prior arrest record itself shall not be considered under Sec. 4A1.3.

Where the prior criminal conduct did not result in conviction, we have held that "the guidelines expressly prohibit the court from considering arrest records alone as evidence of such conduct when contemplating departure under Sec. 4A1.3." See United States v. Cota-Guerrero, 907 F.2d 87, 90 (9th Cir. 1990). Here, as in Cota-Guerrero, the information in the presentence report relating to the dismissed charges appears to be based entirely on police records of arrest. There is no evidence that Martull admitted guilt. Thus the district judge misapplied the Guidelines in considering these charges.

Where the trial court gives both proper and improper reasons for departure, we must vacate and remand for resentencing. United States v. Cervantes Lucatero, 889 F.2d 916, 919 (9th Cir. 1989). We do so here.² 

Martull argued that he should be granted a reduction for acceptance of responsibility under Sec. 3E1.1, but the court never made any specific finding as to this issue and did not mention the subject.

United States v. Carlisle, 907 F.2d 94, 96 (9th Cir. 1990) holds that where the "district court neither made specific findings nor expressly adopted the conclusions in the presentence report," the appellate court cannot determine whether the district court considered the defendant's objections to the Probation Officer's refusal to recommend the reduction; thus a remand for more specific findings is appropriate. Since that is the case here, we remand on this ground as well.

Appellant's sentence is VACATED and REMANDED.