United States v. Francisco Martinez-Cano, United States of America v. Jorge Martinez-Castillo, United States of America v. Eduardo Arrendondo-Martinez , 6 F.3d 1400 ( 1993 )

FERNANDEZ, Circuit Judge:

Francisco Martinez-Cano, Eduardo Arren-dondo-Martinez, and Jorge Martinez-Castillo pled guilty to conspiracy to produce false identification documents. 18 U.S.C. §§ 371 and 1028(a)(1). They were sentenced under the 1992 version of the Sentencing Guide1 lines. The district court increased the base offense level for each of them by six points, based in part upon the number of documents involved. They appealed. We vacate the sentence, and direct that the district court’s alternate determination of a proper sentence be entered as the judgment in this case.

BACKGROUND FACTS

Immigration and Naturalization Service agents executed a search warrant at appellants’ apartment and arrested them. The agents found 16 social security cards, six of which had names, 466 blank alien registration cards, and 58 blank temporary resident cards. All were counterfeit. The agents also found various pieces of equipment which are used to manufacture false identification documents. Appellants were indicted and pled guilty to conspiracy to produce false identification documents.

At sentencing it was agreed that the social security cards could be paired with the other documents. That, of course, made a total of 16 pairs. The probation officer was of the opinion that not only were the pairs sets of documents, but the number of individual documents should also be divided by two, which would dramatically increase the number of sets. The probation officer then opined that there were 270 sets. The government took the position that one document can be dubbed a set which would increase the number of sets still further. Appellants asked the district court to find a total of 16 sets and to determine the guideline sentence accordingly. It appears that the district court agreed with the appellants that only the pairs were sets. However, it determined that it would depart upward by four points because, as it said, the Commission had not adequately taken into account the fact that individuals may have a number of documents which do not constitute sets. It sentenced appellants accordingly and they appealed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

This court reviews the district court’s decision to depart from the Guidelines under a tripartite test established in United States v. Lira-Barraza, 941 F.2d 745, 746-47 (9th Cir.1991) (en bane); United States v. Cruz-Ventura, 979 F.2d 146, 148 (9th Cir.1992). “First, the district court’s determination that an ‘unusual circumstance’ not adequately considered by the Guidelines permits departure is subject to de novo review. Second, the district court’s factual findings supporting the existence of an identified circumstance permitting departure are reviewed for clear error. Finally, the extent of the departure is reviewed to determine, whether it is ‘reasonable’ in light of the standards and policies incorporated in the Sentencing Reform Act and the Guidelines.” Cruz-Ventura, 979 F.2d at 148 (citations omitted).

DISCUSSION-

The guideline for the offense in question appears rather straightforward on its face. It reads:

Trafficking in Documents Relating to Naturalization, Citizenship, or Legal Resident Status; False Statement in Respect to the Citizenship or Immigration Status of Another; Fraudulent Marriage to Assisi Alien to Evade Immigration Law

(a) Base Offense Level: 9

(b) Specific Offense Characteristics

(1) If the defendant committed the offense other than for profit, decrease by 3 levels.

(2) If the offense involved six or more sets of documents, increase as follows:

Number of Sets Increase of Documents in Level

(A) 6-24 add 2

(B) 25-99 - ' add 4

(C) 100 or more add 6.

U.S.S.G. § 2L2.1.

The government suggests that the guideline is not at all straightforward or clear and asks us' to uphold the district court’s decision on the basis that one document can be a set, or on the basis that the Sentencing Commission did not adequately consider the possibility of a defendant’s having a number of documents that did not make up sets. That determination would bring section 5K2.0 into play. We disagree on both points.

A. Guidelines § 2L2.1

As we have already said, section 2L2.1 seems clear on its face. It sets an initial base level of nine and then provides for an increase in that level by a certain number of points when certain numbers of sets of documents are involved. We can see no reason to read the word “sets” to mean “documents.” In fact, to do so would require us to abuse normal English usage. Who would éxpeet the Commission to say “Number of Sets of Documents” when it could accomplish the purpose the government argues for by simply leaving out the words “Sets of’? As Webster’s New International Dictionary says, a set is “a number of things of the same kind ordinarily used together,” or “a number of things naturally connected by location,” or “a group formed by classification.” Webster’s New International Dictionary (2d ed. 1958). The American Heritage Dictionary of thp English Language is to the same effect. It defines a set as “a group of things of the same kind that belong together and are so used_” American Heritage Dictionary (3d' ed. 1992). We are confident that the Commission used the word in just that way. We do recognize the government’s point that “one” is a number. We also recognize that in mathematics a set can consist of a single item, or of no item at all. Again, we see no reason for the Commission to resort to that kind of circumlocution if it desired to increase guideline scores based upon the number of single documents rather than upon the number of groups of documents. The government suggests that perhaps the Commission meant to key on the number of persons who could use the documents. In order to so hold we would have to decide that the Commission used a very roundabout way of accomplishing that goal.

Of course, we have also considered the possibility that the Application Notes would cast light on the Commission’s intent. Both we and the Supreme Court have declared that to be a proper and necessary procedure. See Stinson v. United States, — U.S. -, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993); United States v. Anderson, 942 F.2d 606 (9th Cir.1991) (en banc).

As we said in Anderson, courts should always consider the commentary, “regardless of how clear the guideline may appear on its face.” 942 F.2d at 612. We should also “construe a guideline and its commentary so as to be consistent, if that is possible.” Id. But if it cannot be so construed, the guideline must prevail. Id. at 613. Thus encouraged and enjoined we have turned to Application Note 2, which reads: “Where it is established that multiple documents are part of a set intended for use by a single person, treat the set as one document.”

Unfortunately, far from clarifying or aiding in the construction of the guideline, the Application Note, taken in context and read with the guideline, is virtually unintelligible. It says that a set is to be treated as a single document. But the guideline itself only increases the points based upon sets. If a set is a single document, section 2L2.1(b)(2) could never be applied because one could never have a set. Rather, as soon as one thought one had a set it would metamorphose into a single document only. Thus, the note is in inexorable conflict with the guideline to which it is attached. It is as if the Commission had originally decided to have the first heading under section 2L2.1(b)(2) read “Number of Documents” and then decided to ameliorate that with Application Note 2 by treating a set of documents as a single one. If so, the Commission unaccountably changed its mind and decided to have the guideline heading refer to sets of documents. The government would have us resolve the conflict by striking the words “Sets of’ from the guideline itself. We cannot do that. What we can and must do is disregard the note in this peculiar instance.

Thus, we are left with the conclusion that the district court did not err when it determined that there were only 16 sets of documents involved in this ease.

B. Guidelines § 5K2.0. .

The district court held that the Commission had not adequately considered the possibility that the defendants might have a number of documents which were not formed into sets. On that basis, it departed. In that the court erred.

It appears to us that the Commission was aware of the difference between single documents and sets of documents, and considered both of those in constructing section 2L2.1. Before the 1992 amendment, the guideline did not include any reference whatever to the number of papers that might be involved in a given case. See U.S.S.G. § 2L2.1 (1991). Under that regime, it could be argued that the Commission had not considered the possibility that there would be numerous documents. But when the 1992 amendments were adopted the Commission of necessity recognized that there could be single documents or sets or both. It chose to increase the number of points based upon sets alone. We are in no position to speculate on the reasons for that choice, although it is pellucid that a person who has (or conspires to have) a full usable set of documents is in a better position to profit and to do harm than a person who merely has one part of a set. That the Commission’s choice was a reasoned one is underscored by the fact that the Commission was, no doubt, aware of 18 U.S.C. § 1028(b), which increases the possible penalty when five or more documents are involved. The Commission, nevertheless, chose to key on sets rather than on individual. documents. In other words, the plain language of the guideline shows that the Commission did take the number of documents into account when it drafted section 2L2.1. Departure on the ground that it did not consider numbers of documents would not be appropriate. See United States v. Miller, 991 F.2d 552, 553 (9th Cir.1993); United States v. Martin, 938 F.2d 162, 163-63 (9th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1679, 118 L.Ed.2d 396 (1992).

In unusual circumstances a departure can be appropriate even though the Commission has taken a particular factor into account in some fashion. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0. But where a factor has been taken into' account it must be found to be present “to a degree substantially in excess of that which ordinarily is involved in the offense.” Id. Here, however, the district court did not point to anything unusual or extraordinary in the number of documents involved. While we do not hold that there never could be an unusual case which warranted departure from this guideline, the record does not demonstrate that this is that case. Thus, we must vacate the judgment which determined that it was.

However, mindful of our decision in United States v. Medina, 940 F.2d 1247, 1253 (9th Cir.1991), the learned district judge also issued alternate sentencing determinations which used the guideline ranges that would apply if there were not the four point addition to the appellants’ guideline scores which the district court departure wrought. In the case of Martinez-Cano, the alternate sentence determination provides for a sentence of 10 months;¹ in the case of Arrendondo-Martinez, it provides for a sentence of 14 months; and in the case of Martinez-Castillo, it provides for a sentence of 10 months. Because it appears that the judgments themselves require amendment, the district court shall so amend them upon the issuance of the mandates in these cases.

CONCLUSION

We have determined that when the Commission said that points were to be added to defendants’ guideline scores when they had a “Number of Sets of Documents” it meant just that rather than “Number of Documents.” We have also determined that there was nothing unusual enough about this case to confer upon' the district court the authority to depart from the Guidelines. Thus, we vacate the judgment actually imposed and remand for the entry of judgment using the district court’s alternate sentence determinations.

VACATED and REMANDED.

1 . Martinez-Cano also attempts to appeal from the district court's discretionary refusal to depart downward for what Martinez calls his extraordinary acceptance of responsibility. We have no jurisdiction to review that discretionary decision. United States v. Morales, 898 F.2d 99, 102 (9th Cir.1990).