U.S. v. Lara ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 91-2733
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
YOLANDA C. LARA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
(October 14, 1992)
Before KING, WILLIAMS, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sentenced on a guilty plea for immigration-related violations,
Yolanda C. Lara appeals her sentence. Concluding that the district
court erred in applying the sentencing guidelines in one particu-
lar, we vacate and remand for resentencing.
I. Factual Background.
Following an investigation triggered by an anonymous tip, the
Immigration and Naturalization Service (INS) arrested and charged
Lara and her codefendant, Andres Ramos-Flores, with transporting
and harboring undocumented aliens. The typical scenario provided
for Lara and Ramos-Flores to transport aliens from Brownsville to
Houston, where they were hidden and detained while they contacted
relatives living in the United States who were to wire their "fees"
via Western Union to Lara and Ramos-Flores. These fees were
usually $400 per person.
The investigation included a surveillance of an apartment in
Houston where the aliens were housed. The surveillance team
observed Lara, Ramos-Flores, and three Hispanic females leave the
apartment and enter a vehicle registered to Lara. The INS agents
followed and then stopped the vehicle. The Hispanic females were
all undocumented; each stated that she had paid Lara and Ramos-
Flores $400 to smuggle her into the United States.
Lara admitted to transporting undocumented aliens from
Brownsville to Houston and to hiding them in her Houston apartment.
When a consent search was conducted of that apartment, the INS
agents found one female and three female undocumented aliens, a
.357 revolver and ammunition, and Western Union money transfer
forms. Lara directed the agents to a house on Johnson Street,
where more undocumented aliens were found. One of the aliens told
the agents that she and twelve others had been transported to
Houston by Lara and Ramos-Flores and that each had paid her $400
fee.
Lara pled guilty to a six-count indictment: Three counts
charged her with illegally concealing, harboring, or shielding from
detection transported aliens in the United States, and aiding and
abetting, in violation of 8 U.S.C. § 1324(a)(1)(C) and 18 U.S.C.
2
§ 2; three counts charged her with illegally transporting aliens
and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(B)
and 18 U.S.C. § 2. The government filed a notice of intention to
seek an enhancement of the sentence under 18 U.S.C. § 3147.1 The
district court ordered a presentence investigation report (PSI).
At the sentencing hearing, the court solicited objections to the
PSI's factual findings. The government presented none. Lara
requested the court to consider the credibility of one declarant in
assessing her statements; the court agreed to do so.
The district court then entertained objections to the PSI's
application of the sentencing guidelines. The government objected
to the recommendation that Lara's sentence not be enhanced. The
district court adopted the PSI's recommendation and refused to
enhance.
Lara objected to a number of factors cited as possible grounds
for an upward departure, including the large number (approximately
forty) of undocumented aliens involved; the extortive aspect of the
smuggling operation; the discharge of a firearm in the commission
of the offense; psychological harm to one of the undocumented
aliens; and enhancement by analogy to U.S.S.G. § 2J1.7. This last
suggestion was based upon the scenario that the Brownsville offense
was committed while Lara was on release for the instant charges and
in the sentencing on that offense, the government had failed to
seek enhancement under section 3147. The PSI suggested the
1
While on pretrial release, Lara was arrested on a second charge of
transporting undocumented aliens (the "Brownsville conviction"). She pled guilty
to the charge and was sentenced to a 131-day term of incarceration.
3
propriety of enhancement for the first offense by an upward
departure in such an instance. In addition, Lara objected to the
lack of recommendation in the PSI for a two-point reduction in her
offense level for acceptance of responsibility, as well as to the
increase in her criminal history category by virtue of the
Brownsville conviction.
After hearing these objections, the district court accepted
the calculations set forth in the PSI establishing an offense level
of 9 and a criminal history category of II, based upon a criminal
history score of 2, yielding a guidelines range of 6-12 months.
The court rejected Lara's request for a two-point reduction of the
offense level for acceptance of responsibility.
The district court then employed U.S.S.G. § 2B3.2 by analogy
to support an upward departure for the extortionate element of
Lara's offense and used section 2B3.2(b)(3)(A)(iii), also by
analogy, to support a departure for the firearm-related element.
The court also applied section 2J1.7 by analogy, despite having
earlier rejected the government's motion for an enhancement under
section 3147, to increase the offense level an additional three
points. The above departures raised the base offense level to 26,
which combined with the criminal history category of II to yield a
new range of 70-87 months.
Based upon that range, the court sentenced Lara to a term of
incarceration of 60 months on counts 1 through 6, with the first 27
months imposed for counts 2 through 6 to run consecutively with the
60-month term for count 1. The term of incarceration on all six
4
counts totaled 87 months.
II. Analysis.
Our review of Lara's challenge is controlled by Williams v.
United States, 112 S. Ct. 1112 (1992). We must remand on a showing
that the district court relied upon an invalid factor at sentenc-
ing, absent our finding that the error was harmless, i.e., that the
error did not affect the court's selection of the sentence imposed,
and that the sentence was reasonable. Id. at 1120-21. In
conducting our inquiry, we must accept the factual findings of the
district court unless clearly erroneous, but we review de novo the
application of the guidelines for errors of law. 18 U.S.C. §
3742(e); United States v. Mejia-Orosco, 867 F.2d 216 (5th Cir.),
cert. denied, 492 U.S. 924 (1989).
III. Departure by Analogy to Section 2B3.2.
A sentencing court has the power, under 18 U.S.C. § 3553(b),
to impose a sentence outside the range established by a proper
application of the guidelines, provided it finds "that there exists
an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described." U.S.S.G. § 5K2.0 (citing
18 U.S.C. § 3553(b) (Supp. 1992)). Our determination on appeal
follows a two-pronged inquiry:
First, was the sentence imposed either in violation of
law or as a result of an incorrect application of the
5
Guidelines? If so, a remand is required under
§ 3742(f)(1). If the court concludes that the departure
is not the result of an error in interpreting the
Guidelines, it should proceed to the second step: is the
resulting sentence an unreasonably high or low departure
from the relevant guideline range? If so, a remand is
required under § 3742(f)(2).[2]
Williams, 112 S. Ct. at 1120. We review findings of fact that
underlie the court's sentence under a clearly erroneous standard.
18 U.S.C. § 3742(e) (Supp. 1992); Mejia-Orosco, 867 F.2d at 221.
Applying the first prong of the inquiry, we find that the
departure based upon the extortive aspects of Lara's conduct was
imposed neither in violation of law nor as the result of an
incorrect application of the guidelines, which direct sentencing
courts to
treat each guideline as carving out a ``heartland,' a set
2
18 U.S.C. § 3742(f) (Supp. 1992) provides as follows:
If the court of appeals determines that the sentence ))
(1) was imposed in violation of law or imposed as a
result of an incorrect application of the sentencing
guidelines, the court shall remand the case for further
sentencing proceedings with such instructions as the
court considers appropriate;
(2) is outside the applicable guideline range and is
unreasonable or was imposed for an offense for which
there is no applicable sentencing guideline and is
plainly unreasonable, it shall state specific reasons
for its conclusions and ))
(A) if it determines that the sentence is too high
and the appeal has been filed under subsection (a), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate;
(B) if it determines that the sentence is too low
and the appeal has been filed under subsection (b), it
shall set aside the sentence and remand the case for
further sentencing proceedings with such instructions as
the court considers appropriate;
(3) is not described in paragraph (1) or (2), it shall
affirm the sentence.
6
of typical cases embodying the conduct that each guide-
line describes. When a court finds an atypical case, one
to which a particular guideline linguistically applies
but where conduct significantly differs from the norm,
the court may consider whether a departure may be
warranted.
U.S.S.G. ch. I, pt. A(4)(b), at 1.5-1.6 (policy statement). We
find that the district court's decision to depart upward in this
case was amply supported by the record.
The "heartland" of the typical section 2L1.1 offense, the
offense to which Lara pled guilty, includes the profit-making
element of Lara's scheme. Beyond this, however, section 2L1.1
appears to have accounted for no other aggravating conduct in cases
involving the smuggling, transporting, or harboring of an illegal
alien. Specifically, we are told, "[t]he Commission has not
considered offenses involving . . . dangerous or inhumane
treatment. An upward departure should be considered in those
circumstances." U.S.S.G. § 2L1.1, comment., application note 8.
In sentencing Lara, the district court adopted the findings of
the PSI and announced its intention to depart upward under section
5K2.0. The court cited as its reasons the large number of aliens
involved and the extortive and inhumane aspects of the instant
offense, both of which grounds the above commentary recognizes as
deserving of departure, and additional factors, including the use
of a firearm and the commission of another immigration offense
while on bond.
Moreover, a sentencing court may rely upon relevant informa-
tion contained in the PSI in fashioning its upward departure.
United States v. Murillo, 902 F.2d 1169, 1172 (5th Cir. 1990).
7
Having expressly adopted the factual findings of the PSI (subject
only to Lara's objection to one paragraph contained therein), the
district court was entitled to rely upon the facts as it found them
in imposing sentence. See United States v. Ramirez, 963 F.2d 693,
707 (5th Cir. 1992) (district court may choose to believe PSI's
construction of evidence in resolving factual issues); United
States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989) (same).
The PSI reveals a wealth of support for the district court's
judgment that the base offense level and adjustments afforded by
section 2L1.1 did not adequately reflect the seriousness of Lara's
offense. INS officials conducted interviews with Lara, her co-
defendant Ramos-Flores, local residents, and a number of the aliens
smuggled in by the two defendants. According to information
obtained from the interviews and recited in the PSI, Lara and
Ramos-Flores at one point threatened a smuggled alien, one Magda
Leticia Alvarado-Amaya, with a .357 revolver, insisting that she
either pay the $400 fee or suffer forcible repatriation. Fearing
for her safety, Alvarado-Amaya shortly thereafter sought refuge at
the home of a United States citizen, Patricia Mendoza, with whom a
number of the aliens stayed.
Mendoza confirmed Alvarado-Amaya's story and related another
incident, involving a fifteen-year-old El Salvardoan girl smuggled
in by Lara and Ramos-Flores. The girl, Rosa Candida Alvarenga, was
forced by Lara and Ramos-Flores to dress up like a prostitute and
"work the bars" in town until she could pay off her fee. When
Alvarenga informed Lara that she would prefer to work at more
8
honest labor, Lara reportedly became infuriated, and Ramos-Flores
threatened to cut her hands off and take her back to Mexico, once
again brandishing the revolver for persuasive effect.
Daunted but indomitable, Alvarenga fled the apartment in which
she had been held for the shelter of Patricia Mendoza's house.
Lara and Ramos-Flores later tracked her to Mendoza's house and
tried to threaten her into leaving with them. At one point, Ramos-
Flores discharged his revolver into the air and tried to kick the
door in but left when alerted that the police had been called.
We conclude that the district court did not clearly err in
adopting the factual findings of the PSI. Neither are we impressed
with Lara's contention that the conduct outlined above was
accounted for by the Sentencing Commission when promulgating
section 2L1.1, which no more accounts for the extortive nature of
Lara's particular immigration offense than it does the use of a
weapon in the "typical" immigration violation. See U.S.S.G.
§ 5K2.0, comment., at 5.43.
Lara's conduct undeniably fell outside the "heartland"
described by section 2L1.1. The record before us, at least as
regards the extortive ground for departure, plainly evinces
aggravating circumstances of the kind described in section 3553(b).
Hence, the district court did not err in departing upward based
upon the extortive elements of Lara's offense.
IV. Reasonableness of the Departure.
9
We nevertheless must ascertain, as the second prong of the
Williams test requires, whether the extent of the departure imposed
by the district court was warranted. In engaging in such a review,
we are reluctant to tread with too heavy a step upon the district
court's discretion.3 A departure such as the instant one, under
section 5K2.0, is essentially an unguided one.4 The district
court, however, determined that it could look to section 2B3.2
("Extortion by Force or Threat of Injury or Serious Damage") for an
analogy to Lara's egregious offense conduct.5
In oral argument, counsel for Lara contended that, at over
seven times the maximum initial guideline range, the sentence
ultimately imposed was unreasonable in the extent of its departure
from the guideline norm. We note, at the outset, that "the mere
fact that a departure sentence exceeds by several times the maximum
3
See United States v. Diaz-Villafane, 874 F.2d 43, 49-50 (1st Cir.), cert.
denied, 493 U.S. 862 (1989) (Reasonableness of length of departure is
"quintessentially a judgment call. District courts are in the front lines,
sentencing flesh-and-blood defendants. The dynamics of the situation may be
difficult to gauge from the antiseptic nature of a sterile paper record.
Therefore, appellate review must occur with full awareness of, and respect for,
the trier's superior 'feel' for the case. We will not lightly disturb decisions
to depart, or not, or related decisions implicating degrees of departure.").
4
See United States v. Lambert, 963 F.2d 711, 718 n.3 (5th Cir.), vacated
for reh'g en banc, 1992 U.S. App. LEXIS 16194 (July 14, 1992). A "guided"
departure is one for which the Guidelines provide explicit direction as to the
extent of adjustment to be imposed, such as that under § 2G1.1, comment.,
application note 1 (8-level downward departure if offense lacked profit motive
or physical force or coercion). A departure pursuant to § 5K2.0, in contrast,
is "unguided" in that the guidelines specify no set number of levels by which the
district court must calibrate the degree of its departure.
5
The actual wording used by the district court in applying § 2B3.2 by
analogy is important to the determination of this case, as will become apparent
below. The court stated,
In attempting to structure an upward departure, I looked to the
sentencing guideline section 2B3.2, which involved extortion by
force or threat of serious criminal offense . . . . I think the
application of the sentencing guideline section 2B3.2 is most
analogous to the defendant's actual conduct.
10
recommended under the Guidelines is of no independent consequence
in determining whether the sentence is reasonable." United States
v. Roberson, 872 F.2d 597, 606 n.7 (5th Cir.), cert. denied, 493
U.S. 861 (1989).6 Nor is a sentencing court obliged to provide
reasons justifying the extent of its departure. Id. at 607.
Even so, the district court provided clear and cogent
justification for the extent of its departure. "When departing on
the basis of offense characteristics, the sentencing court should
extend or extrapolate from other Guidelines levels or principles,
or employ analogies to closely related circumstances or conduct
addressed by the Guidelines." United States v. Strickland, 941
F.2d 1047 (10th Cir.), cert. denied, 112 S. Ct. 614 (1991).
The district court here analogized Lara's egregious conduct to
the offense of extortion defined by section 2B3.2. By departing on
that basis, the court reconciled the guidelines' broad objective of
uniformity and proportionality in sentencing with the statutory
directive in the individual case to "impose an appropriate
sentence, having due regard for the purposes" of deterrence, just
punishment, and the protection of the public. See 18 U.S.C.
§ 3553(a)(2),(b) (1988); see also United States v. Gardner, 905
F.2d 1432, 1438 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990);
6
In Roberson, we upheld a sentence more than three times the guideline
maximum. Departures of even greater multiples have been upheld as well. See,
e.g., United States v. Geiger, 891 F.2d 512 (5th Cir. 1989) (4½ times), cert.
denied, 494 U.S. 1087 (1990); United States v. Juarez-Ortega, 866 F.2d 747 (5th
Cir. 1989) (per curiam) (more than 4 times); United States v. Guerrero, 863 F.2d
245 (2d Cir. 1988) (more than 5 times). We also note the multiple and
independent grounds for departure cited by the district court, as not all the
enhancement of Lara's sentence is attributable to the § 2B3.2 departure.
11
United States v. Ferra, 900 F.2d 1057, 1062-63 (7th Cir. 1990).7
We thus cannot say the district court's imposition of a nine-point
departure for the extortive aspects of Lara's conduct in this case
was unreasonable.
V. Discharge of a Firearm.
Secondly, Lara objects to the imposition, by analogy to
section 2B3.2(b)(2)(A), of a five-level increase in her offense
level for the discharge of a firearm. The propriety of such a
departure is beyond peradventure, as section 5K2.0 expressly
provides that "if a weapon is a relevant factor to sentencing for
an immigration violation, the court may depart for this reason."
Nor is the extent of the departure unreasonable. Section 5K2.6
notes that "[t]he discharge of a firearm might warrant a substan-
tial sentence increase." We can find no fault with the district
court's application of the guidelines in this instance.
Lara argues, instead, that there is no evidence in the record
that Lara, as opposed to her co-defendant, ever used the gun.
Moreover, she claims, she was present on only one occasion when the
firearm was brandished and not at the time it was discharged. The
7
We acknowledge that "[i]t would throw the structure of the guidelines out
of kilter to say that a defendant may receive more time on a ``departure' than he
could have received had he been convicted of the crimes leading the judge to
depart." Ferra, 900 F.2d at 1063. See also United States v. Kim, 896 F.2d 678,
684-85 (2d Cir. 1990). But cf. Diaz-Villafane, 874 F.2d at 51-52 (rejecting any
such strictures on district court's discretion to depart). We do not, however,
believe that such a characterization properly describes the actions of the court
in the instant case. Here, the court raised Lara's base offense level of 9 under
§ 2L1.1 by 9 points, by analogy to § 2B3.2's base offense level of 18. We note,
however, that had Lara been separately convicted under § 2B3.2 for conduct
sufficiently unrelated to her immigration offense to avoid the grouping of counts
under § 3D1.1-5, her total offense level would have been computed at 27, not 18.
12
short answer to Lara is that the PSI, the pertinent parts to which
Lara failed to object, reveals that Lara in fact was present on
both occasions.
It is true that her co-defendant, Ramos-Flores, apparently was
the only one actually to use the gun in the commission of the
offense. But Lara was more than merely present when Ramos-Flores
brandished and discharged the gun; she was, in fact, the registered
owner of the firearm. When arrested, moreover, she led the police
directly to its hiding place under her bed. We cannot accept her
contention that the guidelines "personalize" an individual's
conduct to such an extent that the district court may not consider
the relevant conduct of a co-defendant plainly authorized by his
accomplice.8 The district court did not clearly err in relying
upon the PSI's factual findings to depart on the basis of the
discharge of the revolver.
VI. Departure for Large Number of Aliens.
Lara additionally objects to the departure based upon the
large number of aliens involved.9 The six aliens discovered at the
8
For this reason, we need not address whether Lara's involvement with the
firearm rose to the level of "constructive possession." See United States v.
Mueller, 902 F.2d 336 (5th Cir. 1990). Rather, we rest our conclusion on the
fact that each of Lara's counts of conviction included an aiding and abetting
component. As an aider and abettor of Ramos-Flores's actions in furtherance of
the commission of the offense, Lara is punishable as a principal. 18 U.S.C. §
2. See also United States v. Barragan, 1992 U.S. App. LEXIS 9492 (9th Cir. Apr.
22, 1992) (unpublished) (attributing relevant offense conduct of one defendant
to co-defendant under aider and abettor theory).
9
Although the district court merely cited the large number of aliens
involved as one possible ground justifying departure, and there is no showing
that it was a determinative factor in the sentencing, we must nonetheless reach
the issue under Williams as, absent a subsequent showing of harmless error,
remand is required when a sentencing court relies upon an invalid factor in
departing. See Williams, 112 S. Ct. at 1120-21.
13
time of her arrest, she claims, are not "a large number." Lara
overlooks, however, the district court's finding, set out in the
PSI, that Lara and Ramos-Flores together had transported at least
forty aliens from November 1989 to March 7, 1990. Lara did not
object to this finding. Indeed, her sworn admissions may have been
sufficient, standing alone, to lead the district court to conclude
that hers was an expansive smuggling operation.
Section 2L1.1, application note 8, plainly states that "[t]he
Commission has not considered offenses involving large numbers of
aliens . . . . An upward departure should be considered in those
circumstances." See also United States v. Velasquez-Mercado, 872
F.2d 632 (5th Cir.), cert. denied, 493 U.S. 866 (1989); United
States v. Salazar-Villarreal, 872 F.2d 121 (5th Cir. 1989)
(approving upward departures premised in part on the number of
aliens transported). Circuit precedent is even plainer. In United
States v. Lopez-Escobar, 884 F.2d 170, 173 (5th Cir. 1989), we
upheld a departure 2½ times greater than the guideline maximum
based solely on the fact that the defendant's crime "involved
thirty-five aliens, an unusually large number of persons." Id. at
171 (emphasis added). Accord United States v. Hernandez, 943 F.2d
1, 3 (5th Cir. 1991) (twenty-one aliens a large number). Lara's
contention on this point is without merit.
VII. Psychological Harm to a Victim.
The district court accepted the PSI's recommendation for
upward departure under section 5K2.3 ("Extreme Psychological
14
Injury") for the psychological harm inflicted on Alvarenga. That
section's policy statement authorizes an upward departure where "a
victim or victims suffered psychological injury much more serious
than that normally resulting from commission of the offense
. . . ." At the outset, application of section 5K2.3 to the
instant offense would appear to be barred by the statement in
application note 2 to section 3D1.2 that, in the case of an
immigration offense, there is no identifiable victim. The district
court skirted this problem by applying section 5K2.3 by analogy to
the section 2B3.2 extortion offense. There was, of course, no
specified offense of conviction under section 2B3.2.
We decline to decide, however, whether the district court's
methodology in this instance was permissible,10 for we conclude that
the factual findings of harm made by the district court did not
rise to the level of that "substantial impairment of the intellec-
tual, psychological, emotional, or behavioral functioning" intended
by section 5K2.3 and required by caselaw to support a departure on
that basis.11 The PSI's findings, adopted by the district court,
10
We limit our discussion of this issue merely to pointing out that we
rejected a similar argument (albeit applied to very different facts) as to the
analogous departure provision of § 5K2.8 (extreme conduct to the victim). See
Roberson, 872 F.2d at 604-05.
11
See § 5K2.3 (policy statement); United States v. Fawbush, 946 F.2d 584,
586 (8th Cir. 1991) (psychological harm must be "much more serious" than that
normally resulting from crime). Compare United States v. Morin, 935 F.2d 143,
144-45 (8th Cir. 1991) (departure held to be error; record did not support
finding that victim suffered greater than normal psychological harm from
offense); United States v. Zamarripa, 905 F.2d 337, 340-41 (10th Cir. 1990)
(same) with United States v. Newman, 965 F.2d 206, 209-210 (7th Cir. 1992)
(departure upheld; psychologist testified as to great harm, and Social Security
Administration found victim totally disabled); United States v. Ellis, 935 F.2d
385, 396 n.12 (1st Cir.) (departure upheld; testimony of victim's counselor
supported finding of extreme harm), cert. denied, 112 S. Ct. 201 (1991); United
States v. Pergola, 930 F.2d 216, 219 (2d Cir. 1991) (departure upheld; finding
supported by evidence of victim's sleepless nights and constant fear of being
killed).
15
stated only in conclusionary fashion that Lara's conduct "resulted
in psychological harm to the alien" and that Alvarenga was placed
on tranquilizers "due to a possible nervous breakdown." Even
accepting the findings as not clearly erroneous, there is no
evidence of the alleged substantial impairment or its duration. We
find this an insufficient factual basis to support enhancement
under section 5K2.3.
VIII. Departure for Violation of 18 U.S.C. § 3147.
Lara also contends that the district court erred in upwardly
departing by three offense levels based upon her immigration
offense committed while on bond from the instant offense of
conviction. Lara was released on bond pending trial on March 8,
1990. She was arrested in Brownsville on a second charge of
transporting illegal aliens on May 20, 1990, pled guilty, and
received a sentence of 131 days' imprisonment. Sentencing for the
Brownsville conviction occurred on September 27, 1990, well before
sentence was imposed in this case on June 20, 1991.
Section 2J1.7 directs a sentencing court to add three offense
levels "[i]f an enhancement under 18 U.S.C. § 3147 applies."12 In
12
18 U.S.C. § 3147, as amended, provides,
A person convicted of an offense committed while
released under this chapter shall be sentenced, in
addition to the sentence prescribed for the offense to))
(1) a term of imprisonment of not more than ten
years if the offense is a felony; or
(2) a term of imprisonment of not more than one
year if the offense is a misdemeanor.
A term of imprisonment imposed under this section shall
16
this case, the district court refused the government's request for
enhancement under section 3147. The district court imposed an
enhancement anyway, apparently applying section 2J1.7 by analogy
only.
This enhancement was erroneous. Recently, in United States v.
Pace, 955 F.2d 270, 278-79 (5th Cir. 1992), we held that Congress
and the Sentencing Commission have indicated, respectively, in
sections 3147 and 2J1.7, that an enhancement for a post-conduct
conviction should be applied "to the sentence for the new crime
committed while on release, not the original crime for which the
defendant is on release."13
The conclusion drawn in Pace accords with reason and common
sense. We do not believe it was in the contemplation of Congress
or the Commission to permit an enhancement when the government
elects not to seek express statutory or guideline enhancement in
the second conviction, as was the case with the Brownsville
conviction. Such a construction avoids the anomaly, well illus-
trated by the facts of this case, of subjecting an offender to risk
of enhancement of her sentence for the first offense simply because
it happens to be adjudicated after the second conviction.
Lara argues, as well, that the district court improperly
included the Brownsville conviction in computing her criminal
history under section 4A1.1(b), thus raising her criminal history
be consecutive to any other sentence of imprisonment.
13
The result in Pace accords with the determination in the instant PSI:
"Our interpretation of U.S.S.G. § 2J1.7 is that it should have been applied in
the Brownsville case . . . and is not applicable to the instant offense."
17
score from 0 to 2 and resulting in a criminal history category of
II. Lara argues, without citation of authority, that conduct and
conviction occurring after the conduct that is the subject of the
current sentence cannot be employed to increase the criminal
history score.
We find this issue resolved by the plain language of the
guidelines provision defining "prior sentence" for purposes of the
criminal history computation: Section 4A1.2(a)(1) provides that a
prior sentence is "any sentence previously imposed upon adjudica-
tion of guilt . . ." (emphasis added). Simply put, the Brownsville
conviction was a sentence imposed upon adjudication of guilt prior
to the sentence for the instant offense. See also section 4A1.2,
comment., application note 1 (including as a prior sentence one
"imposed after the defendant's commencement of the instant offense,
but prior to sentencing on the instant offense").14
IX. Denial of Adjustment for Acceptance of Responsibility.
Lastly, Lara asserts as error the district court's failure to
grant her a two-point reduction in offense level for acceptance of
14
We note that enhancement under § 2L1.1(b)(2) would have been inappropri-
ate, inasmuch as it applies "only if the previous conviction occurred prior to
the last overt act of the instant offense." § 2L1.1, comment., application note
4. The Brownsville conviction occurred after the last overt act of the instant
offense. Nothing in the guidelines, however, suggests that the unavailability
of enhancement under § 2L1.1(b)(2) prevents an adjustment to the criminal history
category under § 4A1.1.
Nor do we find the applicable time period for sentences to be considered
in adjusting the criminal history score specified in § 4A1.2(e) relevant to the
determination of this issue. The provisions therein merely instruct courts to
ignore "stale" offenses. Here, Lara received a prior sentence for the
Brownsville conviction "within fifteen years of [her] commencement" of the
instant offense. § 4A1.2(e)(1). Thus, § 4A1.2(e) provides no obstacle to the
assignment to Lara of criminal history category II.
18
responsibility. Under U.S.S.G. § 3E1.1(a), the court may reduce
the offense level by two points "[i]f the defendant clearly
demonstrates a recognition and affirmative acceptance of personal
responsibility for his personal conduct." The trial court's
determination of acceptance of responsibility is entitled to great
deference on review and will not be disturbed unless it is without
foundation. United States v. Villarreal, 920 F.2d 1218 (5th Cir.
1991). Here, both the district court and the PSI stated that,
although Lara cooperated with the INS after her arrest, she tended
to minimize her behavior and continued to deny that a firearm was
involved. The district court's decision in this regard is
adequately supported in the record, and we decline to disturb it.
X. Conclusion.
The district court fundamentally erred by enhancing Lara's
sentence three points for a prior conviction under section 2J1.7.
Under Williams, we must remand for resentencing unless we can
conclude that the error did not affect the district court's
selection of the sentence to be imposed. See Williams, 112 S. Ct.
at 1120-21. There has been no such showing of harmless error in
this case. We therefore VACATE and REMAND for resentencing
consistent herewith.15
15
Finally, we note sua sponte that there exists a discrepancy between the
oral imposition of sentence and the sentence imposed in the judgment of
commitment. The transcript of the sentencing hearing states that Lara is to
serve the first 24 months of her sentence on counts 2-6 consecutively to the
sentence imposed for count 1; the judgment of commitment specifies 27. We
anticipate that this discrepancy will be resolved by the district court on
remand.
19