United States v. Quinones Rodriguez ( 1994 )

June 9, 1994 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1601
UNITED STATES OF AMERICA,
Appellee,
v.
JESUS M. QUINONES, a/k/a JESUS M. QUINONES-RODRIGUEZ
Defendant, Appellant.
ERRATA SHEET
The order of the court issued on May 20, 1994 is corrected
as follows:
On page 15, line 8, change F.2d to F.3d.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 93-1601
UNITED STATES OF AMERICA,
Appellee,
v.
JESUS M. QUINONES, a/k/a JESUS M. QUINONES-RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jose Antonio Fuste, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Boudin, Circuit Judge.
Luis A. Plaza-Mariota, by appointment of the court, for
appellant.
Jose A. Quiles-Espinosa, Senior Litigation Counsel, with
whom Guillermo Gil, United States Attorney, and Miguel A.
Pereira, Assistant United States Attorney, were on brief, for
appellee.
May 20, 1994
SELYA, Circuit Judge. This appeal requires that we
SELYA, Circuit Judge.
explicate the circumstances in which consecutive sentences may be
appropriate under the sentencing guidelines and the methodology
for imposing such sentences.1 We then test the sentence imposed
below in light of these emergent principles.
I. DERIVATION OF THE SENTENCE
In late 1992, a federal grand jury indicted defendant-
appellant Jesus M. Quinones-Rodriguez (Quinones) on one count of
carjacking in violation of 18 U.S.C. 2119(1). The next month,
the grand jury returned a separate indictment charging appellant
with participating in a different carjacking episode. After the
district court consolidated the cases, appellant pleaded guilty
to both charges.
When no guideline exists referable to a particular
offense of conviction, a sentencing court must select, and then
apply, the most analogous offense guideline. See U.S.S.G.
2X5.1; see also United States v. Mariano, 983 F.2d 1150, 1158-60
(1st Cir. 1993) (describing mechanics of choosing analogy).
Because no guideline had yet been promulgated for carjacking, the
district court borrowed the robbery guideline, U.S.S.G. 2B3.1,
which specified a base offense level (BOL) of 20.
The district court then embarked upon a series of
1The November 1992 edition of the guidelines applies in this
case. See United States v. Harotunian, 920 F.2d 1040, 1041-42
(1st Cir. 1990) (explaining that the guidelines in effect at the
time of sentencing control unless ex post facto considerations
prohibit their use). Hence, all references herein are to that
edition.
3
interim calculations. It increased the BOL: by seven levels
because a perpetrator discharged a firearm in the course of one
carjacking, see U.S.S.G. 2B3.1(b)(2)(A); by two levels because
the perpetrators inflicted bodily injury on certain victims, see
id. 2B3.1(b)(3)(A); by four levels because the perpetrators
abducted two of the victims, see id. 2B3.1(b)(4)(A); and by one
level because the amount of loss, while not over $50,000,
nonetheless exceeded $10,000, see id. 2B3.1(b)(6)(B) (C). The
court added two levels to reflect the existence of separate
"groups" of offenses,2 see U.S.S.G. 3D1.4(a), after determining
that the carjacking charges were non-groupable, see U.S.S.G.
3D1.2(d) (excluding robbery from the operation of standard
grouping principles). And, finally, the court deducted three
levels for acceptance of responsibility, see U.S.S.G. 3E1.1(b).
The adjustments that we have catalogued produced a
guideline sentencing range (GSR) of 168 210 months.3 At the
sentencing hearing, the judge recognized that, in the "typical
case," concurrent sentences, rather than consecutive sentences,
are the norm; that, absent a departure, the guidelines would
generate a total punishment of no more than 210 months in prison
"for the whole case," that is, for both carjackings; and that, in
2Under the grouping rules, a single charged offense can
itself constitute a cognizable "group." See U.S.S.G. 3D1.2,
comment. (n.7). So it is here.
3Appellant's GSR is the product of an adjusted offense level
of 33, tabulated at criminal history category III. Appellant did
not object either to the district court's interim sentencing
calculations or to its compilation of the criminal history score.
Hence, we take as a given that the GSR is correctly calibrated.
4
a concurrent sentence paradigm, the total punishment could not
lawfully exceed the maximum term of imprisonment 15 years (180
months) that Congress had established for a carjacking
conviction, see 18 U.S.C. 2119(1). Nevertheless, the judge
eschewed the imposition of concurrent sentences. He reasoned
that, given appellant's "extreme conduct," the case was not a
"normal, typical guideline case"; that a 180-month maximum
sentence would not be "adequate to achieve punishment
commensurate to the offense conduct"; and, therefore, that
concurrent sentences were not an acceptable option.
The judge then departed upwardly and imposed a 336-
month prison term a term that, in the judge's words, "would be
the equivalent of consecutive sentences in both consolidated
criminal cases on the basis of the lower end of the guideline on
each [168 months]." Citing U.S.S.G. 5K2.8, the judge grounded
the upward departure in "[t]he heinous, the brutal, the cruel,
degrading treatment that was given to some of the victims." This
appeal followed.
II. QUESTIONS PRESENTED
Quinones attacks the sentences on three fronts. His
principal claim is that concurrent sentences are mandated in
multiple-count cases by dint of U.S.S.G. 5G1.2. Secondarily, he
asserts that, even if consecutive sentences are a theoretical
possibility, his conduct was not sufficiently "extreme" to
warrant so unorthodox an approach. All else aside, he
asseverates that the outcome here reflects an excessive,
5
unreasonable increase in punishment an increase that simply
cannot be justified. Although these forays are mounted with
great energy, they sputter and stall, with one possible
exception.
III. IMPOSING CONSECUTIVE SENTENCES
Appellant claims that U.S.S.G. 5G1.2 requires that he
be sentenced to concurrent terms of imprisonment for the two
carjackings.4 We explore this claim.
Section 5G1.2 anticipates that, in the usual case, at
least one count in a multiple-count indictment will be able to
accommodate the total punishment for the offenses of conviction;
4The operative language of section 5G1.2 provides that, in
multiple-count cases, "the sentence imposed on each count shall
be the total punishment," U.S.S.G. 5G1.2(b), and that:
(c) If the sentence imposed on the count
carrying the highest statutory maximum is
adequate to achieve the total punishment,
then the sentences on all counts shall run
concurrently, except to the extent otherwise
required by law.
(d) If the sentence imposed on the count
carrying the highest statutory maximum is
less than the total punishment, then the
sentence imposed on one or more of the other
counts shall run consecutively, but only to
the extent necessary to produce a combined
sentence equal to the total punishment. In
all other respects sentences on all counts
shall run concurrently . . . .
U.S.S.G. 5G1.2(c)-(d). While this case involves two separate
indictments, section 5G1.2 treats consolidated indictments in the
same manner as it treats a single indictment containing multiple
counts. See id., comment. (explaining that 5G1.2 applies to
"multiple counts of conviction . . . contained in different
indictments . . . for which sentences are to be imposed at the
same time or in a consolidated proceeding").
6
in other words, one count (if not more) will have a statutory
maximum steep enough to permit imposition of the total punishment
for all counts as the sentence on that one count. And when that
is so, "[t]he sentence on each of the other counts will then be
set at the lesser of the total punishment and the applicable
statutory maximum, and be made to run concurrently with all or
part of the longest sentence." U.S.S.G. 5G1.2, comment.
Here, the charges confronting appellant comprised two
counts of carjacking, both having the same 15-year statutory
maximum. Because this ceiling fell near the midpoint of the GSR,
the court could have followed the usual praxis, imposed a
sentence on each count that fit within both the statutory maximum
and the GSR, and run those sentences concurrently. The issue in
this case, however, is not whether concurrent sentences were
feasible clearly, they were but whether the lower court
possessed the power and authority to follow a different course
and impose consecutive sentences.
In arming ourselves to undertake this mission, the
guidelines are not our only ordnance. By statute, Congress
empowered district courts to utilize either concurrent or
consecutive sentences. See 18 U.S.C. 3584(a) (providing that
"if multiple terms of imprisonment are imposed on a defendant at
the same time . . . the terms may run concurrently or
consecutively"). In the same statute, Congress directed courts,
in choosing between concurrent and consecutive sentences, to
consider a specific set of factors, see 18 U.S.C. 3584(b)
7
(directing consideration of factors specified in 18 U.S.C.
3553(a)). These factors include the kinds of sentence and
sentencing ranges established for the offenses of conviction in
the guidelines. See 18 U.S.C. 3553(a)(4). This medley
harmonizes melodiously with 28 U.S.C. 994(a)(1)(D), a statute
that instructs a sentencing court to employ the guidelines in
determining "whether multiple sentences to terms of imprisonment
should be ordered to run concurrently or consecutively."
We start the task of integrating these various
provisions by recalling United States v. Flowers, 995 F.2d 315(1st Cir. 1993), a case in which we confirmed that the guidelines
do not entirely eradicate a district court's sentence-structuring
power. See id. at 317. Rather, "[a] sentencing court may depart
from the Guidelines rule, provided it explains why the case
before it is unusual and lies outside the Guidelines
``heartland.'" Id. Although Flowers is not directly on point
there, we were addressing a court's ability to deviate from the
imperatives of U.S.S.G. 5G1.3, a guideline that deals with the
sentencing of defendants who are already subject to undischarged
terms of immurement we think that the same logic applies to the
closely related question of a district court's discretion vel non
under U.S.S.G. 5G1.2.
Extrapolating from the Flowers rationale, we hold that
a sentencing court possesses the power to impose either
concurrent or consecutive sentences in a multiple-count case. We
also hold, however, that this power, like so many other
8
sentencing powers in modern federal criminal practice, only can
be exercised consonant with the overall thrust of the sentencing
guidelines. To be specific, a sentencing court's decision to
abjure the standard concurrent sentence paradigm should be
classified as, and must therefore meet the requirements of, a
departure. It follows that a district court only possesses the
power to deviate from the concurrent sentencing regime prescribed
by section 5G1.2 if, and to the extent that, circumstances exist
that warrant a departure, see, e.g., U.S.S.G. 5K2.0.
This interpretation has much to commend it. In the
first place it meshes the operative statutes with the sentencing
guidelines a necessary integration inasmuch as the statutes,
read as a unit, dictate that a sentencing court consider the
guidelines and policy statements promulgated by the Sentencing
Commission. See 18 U.S.C. 3584(a) & (b), 3583(a). In the
second place, this interpretation makes explicit the rationale
underlying our recent opinion in United States v. Hernandez-
Coplin, F.3d , (1st Cir. 1994) [No. 92-2228, slip op.
at 20-21] (indicating that, once a sentencing court appropriately
determines to depart from the GSR in a multiple-count case,
consecutive sentences comprise a permissible method of
effectuating such decisions if the highest available statutory
maximum for any single count is too confining). In the third
place, this interpretation lands us in excellent company; the two
other circuits to have addressed the issue have decided it in the
same way. See United States v. Perez, 956 F.2d 1098, 1103 (11th
9
Cir. 1992); United States v. Pedrioli, 931 F.2d 31, 32 (9th Cir.
1991).
To recapitulate, a district court retains discretion
under 18 U.S.C. 3584(a) and the sentencing guidelines to order
that sentences be served consecutively notwithstanding the
dictates of U.S.S.G. 5G1.2. This discretion, however, is not
sui generis; it is simply another manifestation of the district
courts' departure power. Because this is so, a district court
can only impose consecutive sentences in derogation of U.S.S.G.
5G1.2 if it follows the accepted protocol for guideline
departures. See Perez, 956 F.2d at 1103; see also Pedrioli, 931
F.2d at 33 (explaining that "[t]he statutory reference to the
guidelines . . . incorporates the guidelines' own procedures for
departing from guideline recommendations"). The short of it is
that a court can impose consecutive sentences only by complying
with the three-step procedure first formulated in United States
v. Diaz-Villafane, 874 F.2d 43, 49 (1st Cir.), cert. denied, 493
U.S. 862 (1989), and later refined in United States v. Rivera,
994 F.2d 942, 950 (1st Cir. 1993).
IV. THE PROPRIETY OF THE DEPARTURE
It is against this backdrop that we turn to the
sentences imposed in this case. While the GSR topped out at 210
months, the court, using the consecutive sentence mechanism,
directed that appellant serve a total of 336 months in prison.5
5Because appellant pleaded guilty on two counts, each of
which carried a potential 15-year prison term, see 18 U.S.C.
2119(1), the maximum aggregate term available by statute was 30
10
Appellant assigns error.
We review a sentencing court's decision to depart by
means of a three-step procedure:
First, we evaluate the circumstances relied
on by the district court in determining that
the case is sufficiently "unusual" to warrant
departure. If the stated circumstances pass
muster, we proceed to the next rung and
determine whether those circumstances were
adequately documented. After the first two
levels are climbed, the departure must be
measured by a standard of reasonableness.
United States v. Aguilar-Pena, 887 F.2d 347, 350 (1st Cir. 1989)
(citing Diaz-Villafane, 874 F.2d at 49); see also United States
v. Rosales, F.3d , (1st Cir. 1994) [No. 92-1732, slip
op. at 15]; Rivera, 994 F.2d at 950. Our task is simplified
here, as the district court premised its upward departure on
appellant's "extreme conduct" in the commission of the offense
and extreme conduct is plainly a circumstance justifying an
upward departure.6 See United States v. Johnson, 952 F.2d 565,
years. See Hernandez Coplin, F.3d at [slip op. at 20]
(explaining that, in a multiple-count case, "the statutory
maximum is derived by adding up the maximums for each of the
counts [of conviction]").
6The guideline provision that explicitly encourages such
departures states in relevant part:
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.
U.S.S.G. 5K2.8.
11
584 (1st Cir. 1991) (applying U.S.S.G. 5K2.8); United States v.
Ellis, 935 F.2d 385, 395 (1st Cir. 1991) (same). Thus, we are
concerned exclusively with the second and third steps of the
departure pavane.
A. Factual Justification.
Since carjacking by its nature is a violent felony,
see, e.g., U.S.S.G. 2B3.1 (defining carjacking as "the taking or
attempted taking of a motor vehicle from the person or presence
of another by force and violence or by intimidation"), particular
instances of carjacking can bear the weight of an upward
departure only when they involve conduct that is more "heinous,
cruel, brutal, or degrading to the victim(s)" than the sort of
conduct ordinarily associated with run-of-the-mill carjacking
cases. See United States v. Kelly, 1 F.3d 1137, 1143 (10th Cir.
1993); see generally U.S.S.G. 5K2.0. At the second step of the
Diaz-Villafane inquiry, appellate review of a district court's
determination that a case is unusual, and therefore warrants
departure, must take place "with full awareness of, and respect
for, the trier's superior ``feel' for the case." Diaz-Villafane,
874 F.2d at 50.7 Insofar as it involves factfinding, this
7Of course, when "departure decisions reflect a
determination of the purpose of, or an interpretation of the
language in, a Guideline," plenary review is appropriate. United
States v. Doe, 18 F.3d 41, 43-44 (1st Cir. 1994) (citations and
internal quotation marks omitted). But no such questions
permeate this appeal. The relevant language of section 5K2.8 is
not problematic, for the guideline specifically "recognizes that
departure may be appropriate when the defendant's actions are
heinous, cruel, or brutal beyond the characteristics inherently
12
standard of review translates into what courts commonly call
clear-error review. See id. And thereafter, "due deference" is
accorded to the district court's application of the guidelines to
particular facts. 18 U.S.C. 3742(e).
In the case at bar, the judge premised the upward
departure on the unusually brutal, cruel, and degrading treatment
accorded some of the victims. Having reviewed the record with
care, we believe that the lower court's factfinding is entirely
supportable. Based on those findings, the circumstances of the
carjackings in which appellant participated are significantly
atypical. Consequently, a departure is warranted.
As previously noted, appellant pleaded guilty to two
carjacking charges. His argument against the finding of ``extreme
conduct' is directed mainly to the November 8, 1992 incident. He
claims that he is insulated from responsibility for any excesses
that took place during that episode because he shot himself in
the leg, required medical assistance, and was elsewhere "when the
victims were robbed, beaten and shot."
This claim does not withstand scrutiny. Despite
appellant's self-inflicted wound, there is ample evidence that he
took part in the beatings. Statements of fact in a presentence
report are generally accorded evidentiary significance at
sentencing. See, e.g., United States v. Morillo, 8 F.3d 864, 872
(1st Cir. 1993) ("Facts contained in a presentence report
associated with the crime being sentenced." Kelly, 1 F.3d at
1143 (emphasis supplied).
13
ordinarily are considered reliable evidence for sentencing
purposes."). That proposition has special force where no
objection was lodged to the probation officer's account. See id.
at 872-73.
In this instance, the presentence report recites that
appellant entered the victims' vehicle, forcefully struck one man
on the head, aimed his gun at the second man, and threatened to
blow off his head. He then continuously pistol-whipped the first
victim while he robbed him of his jewelry. Appellant accepted
this account without particularized objection. This conduct
especially the incessant beating of the first victim is of a
piece with the examples enumerated in section 5K2.8 itself. See
supra note 6. It is emblematic of the very sort of sociopathic
behavior that section 5K2.8 sought to single out for special
attention.
Moreover, the basis for departure extends beyond the
November 8 incident; the court below also grounded its departure
on appellant's conduct during the episode that occurred two days
earlier. Appellant does not discuss his role in the first
carjacking. We can readily appreciate his diffidence: the
circumstances of that incident convey a grim message.
In regard to the events of November 6, the trial court
found that the victim, Munoz, had been exposed to a series of
"brutalities" for a period of over three hours; that he was
"mercilessly beaten with cocked handguns" by the assailants,
including appellant; that the carjackers constantly threatened
14
him with death, forcing him to beg for his life; that, at one
point, Munoz was coerced into putting his finger into the barrel
of a .357 magnum revolver, in a macabre sort of game; and that
the carjackers appeared to be enjoying themselves throughout.
These findings are all solidly rooted in the record.
Accordingly, we rule that the circumstances of the two offenses
and the facts relative to Quinones' participation in them justify
an upward departure.
B. Reasonableness.
We now reach the final rung on the departure ladder.
Our duty is clear: "once we have assured ourselves that the
sentencing court considered circumstances appropriate to the
departure equation and that those factors enjoyed adequate record
support, the direction and degree of departure must, on appeal,
be measured by a standard of reasonableness." Diaz-Villafane,
874 F.2d at 49; accord United States v. Doe, 18 F.3d 41, 44 (1st
Cir. 1994).
Noting that the sentences together represent an
increase of 126 months over the pinnacle of the GSR, or, put
another way, a 60% increase in the overall quantum of punishment,
appellant asseverates that so substantial a departure is
excessive, and, hence, unreasonable. This asseveration takes on
a special gloss because the district court made no effort to
explain the degree of departure. We recently confronted a
somewhat similar situation in Rosales. There, Judge Bownes
wrote:
15
Although sentencing courts have substantial
leeway with respect to the degree of a
departure, this freedom does not relieve a
sentencing court from explaining its ultimate
decision of how far to depart. Merely
explaining why a departure was made does not
fulfill the separate requirement of stating
the reasons for imposing the particular
sentence.
Rosales, F.3d at [slip op. at 18] (citations and internal
quotations marks omitted). Rosales builds on a long line of
circuit precedent to like effect. See, e.g., Rivera, 994 F.3d at
950; United States v. Ocasio, 914 F.2d 330, 336 (1st Cir. 1990).
Other signposts point in the same direction. See, e.g., Kelly, 1
F.2d at 1144; 18 U.S.C. 3553(c)(2).
To be sure, district courts need not be precise to the
point of pedantry in explaining judgment calls undertaken in the
course of the sentencing process. We have consistently rejected
a per se rule tying degrees of departure to the use of analogs,
see, e.g., United States v. Aymelek, 926 F.2d 64, 69-70 (1st Cir.
1991); and we have, on occasion, sanctioned departures in the
absence of a clear explanation for the designated degree of
departure, see, e.g., United States v. Ramirez, 11 F.3d 10, 14
(1st Cir. 1993). But the omission of an explicit explanation of
the scope of a departure is a practice that should be employed
sparingly. On appeal, we will overlook such an omission only if
the reasons for the judge's choice are obvious or if an
explanation can fairly be implied from the record as a whole.
Here, the record gives us pause. The extent of the
departure, whether viewed in absolute or relative terms, is very
16
great.8 The court does not indicate why it believed that a
lesser departure would be inadequate. Indeed, the judge's only
statement apropos of the degree of departure was to the effect
that a 336-month prison term would be equivalent to a sentence
for each offense at the low end of the GSR, served consecutively.
This comment sheds very little light and does not in any way
buttress the degree of departure.
Because we find ourselves unable to evaluate the
reasonableness of the court's departure equation without the
benefit of some elaboration, we must take suitable precautions.
As matters now stand, there is simply too great a risk that the
extra period of incarceration imposed on appellant was derived in
an arbitrary manner. Rather than requiring resentencing,
however, we think a less cumbersome alternative may suffice.
In United States v. Levy, 897 F.2d 596 (1st Cir. 1990),
we noted that, if ambiguities lurk in the sentencing record, a
court of appeals may essay a limited remand for clarificatory
purposes. Id. at 599 (citing illustrative cases); see also
United States v. Parra-Ibanez, 951 F.2d 21, 22 (1st Cir. 1991)
(remanding for clarification whilst retaining appellate
jurisdiction). We believe that the interests of justice can be
served fully by following a similar practice here. Hence, we
remand the matter to the district court with directions to
revisit the extent of the departure and either (a) vacate the
8The departure added over ten years of incremental
incarceration to appellant's total punishment, boosting the
length of sentence by some 60%.
17
sentence and conduct a new sentencing hearing, or (b) reaffirm
the sentence previously imposed, filing with the clerk of the
district court a written statement of its reasons for settling
upon, and adhering to, the degree of departure.9
In all events, the district court shall notify the
clerk of this court within twenty days of the date hereof as to
which option it chooses to pursue. In the meantime, we shall
retain
appellate jurisdiction. Of course, we express no opinion on the
appropriateness of the sentences previously imposed.
It is so ordered.
It is so ordered.
9The district court, in its discretion, may (but need not)
convene a hearing or invite arguments from counsel in attempting
to decide which option to pursue.
18