United States v. Miguel Alejo Mundo ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4888
MIGUEL ALEJO MUNDO,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-99-100)
Submitted: April 28, 2000
Decided: June 22, 2000
Before MURNAGHAN and LUTTIG, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Steven H. Levin, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Miguel Alejo Mundo pled guilty to conspiracy to possess cocaine
with intent to distribute, 21 U.S.C. § 846 (1994), and attempted pos-
session of cocaine with intent to distribute, 21 U.S.C.A. § 841(a)
(West 1999). He appeals the 103-month sentence he received, con-
tending that the district court abused its discretion in departing
upward because of a prior Mexican conviction for transportation of
marijuana. We affirm.
Mundo's offense level was 28. With no criminal convictions in the
United States, he was in criminal history category I. His guideline
range was 78-97 months. However, Interpol records showed that in
1989 Mundo had been convicted in Mexico of transporting 19.5 kilo-
grams of marijuana. The marijuana was concealed in a secret com-
partment in a truck with California license plates; Mundo told
authorities he was being paid to transport it. Mundo received a ten-
year sentence which was later reduced to three years and five months.
The probation officer recommended that the district court consider
departing upward based on the foreign sentence. See U.S. Sentencing
Guidelines Manual § 4A1.3(a), p.s. (1998).
Mundo objected, asserting that the district court should not depart
upward without reliable information about whether Mundo received
due process in connection with the Mexican conviction. However, at
sentencing, defense counsel could offer no information about the cir-
cumstances surrounding the conviction. The government argued that
a departure was appropriate based on the quantity of marijuana and
the ten-year sentence. The district court agreed and departed. The
extent of the departure was determined by calculating the guideline
range that Mundo would have if he had received three criminal his-
tory points for the Mexican conviction. The new guideline range was
87-108 months. The court imposed a sentence of 103 months.
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On appeal, Mundo contends that the departure was an abuse of dis-
cretion because the district court lacked sufficient information about
the level of due process afforded Mundo in the Mexican court. A dis-
trict court's decision to depart is reviewed for abuse of discretion. See
Koon v. United States, 518 U.S. 81, 96-100 (1996). The court may
depart based on an encouraged factor unless the applicable guideline
takes the factor into account. See United States v. Brock, 108 F.3d 31,
34 (4th Cir. 1997) (citing Koon). In this case, a foreign sentence is an
encouraged factor under § 4A1.3(a).
Mundo argues that the district court should not have departed with-
out evidence about the nature of the criminal justice system in the
Mexican state where the conviction occurred. The guideline does not
require such evidence or information. However, even when the dis-
trict court is informed of possible constitutional violations affecting
the foreign conviction, it may consider reliable information about the
conduct underlying the conviction. See United States v. Fordham, 187
F.3d 344, 347 (3d Cir. 1999) (Mexican conviction for marijuana pos-
session); see also United States v. Delmarle, 99 F.3d 80, 85 (2d Cir.
1996). In Mundo's case, no constitutional infirmities were identified
in connection with the Mexican conviction, and Mundo did not dis-
pute the facts in the Interpol report. A conviction for the underlying
conduct would have exposed Mundo to a sentence of up to five years
imprisonment in the United States, see 21 U.S.C.A. § 841(b)(1)(D)
(West Supp. 1999). Given these facts, we find that the district court
did not abuse its discretion in departing upward based on the Mexican
sentence.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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