Appeal from the United States District Court for the Southern District of California. D.C. No. 90-0272-01-K. Judith N. Keep, Chief District Judge, Presiding. Original Opinion Reported at,
Before: Robert Boochever, William A. Norris, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Boochever.
Order AND AMENDED OPINION
BOOCHEVER, Circuit Judge:
Justina Martinez-Gonzalez appeals her sentence of 27 months imposed following conviction on a guilty plea to conspiracy to transport and harbor illegal aliens, in violation of 8 U.S.C. § 1324(a)(1)(B) & (C) and 18 U.S.C. § 371. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Martinez-Gonzalez argues that the district court erred in departing upward by two levels from her base offense level of thirteen due to the sophistication of her smuggling organization and the large numbers of aliens involved.
In United States v. Lira-Barraza, 941 F.2d 745 (9th Cir. 1991) (en banc), this court set forth a three-part test for evaluating a district court's decision to depart from the applicable Sentencing Guidelines range. First, we review de novo whether the district court had legal authority to depart. Id. at 746. Second, we review for clear error the factual findings supporting the existence of the identified circumstance. Id. Third, we review for abuse of discretion whether the degree of departure was reasonable within the meaning of 18 U.S.C. § 3742(e)(3) and (f)(2). Id. at 747.
A district court is authorized to depart from the applicable Guideline range if it identifies an aggravating circumstance that was not adequately considered by the Commission. Id. at 746. The Commentary to the Guidelines informs us that "the Commission has not considered offenses involving large numbers of aliens or dangerous or inhumane treatment. An upward departure should be considered in those circumstances." U.S.S.G. § 2L1.1, comment. (n.8). The court here stated that its upward departure was based on "the length [of time of the conspiracy], the sophistication, and the large number of aliens that went through this particular organization." Excerpts of Record (E.R.) at 37. Hence, it identified aggravating circumstances which could provide a proper basis for an upward departure.
Contrary to Martinez-Gonzalez' contention, a district court is not required to find both a large number of aliens and dangerous or inhumane treatment of aliens for the purpose of departing upward. The Commentary plainly uses the disjunctive "or" rather than the conjunctive "and," thereby indicating that each clause is to be given separate meaning. See Garcia v. United States, 469 U.S. 70, 73 (1984). Nor is there any support for the proposition that the large number of aliens must be transported in one trip. Cf. United States v. Nuno-Huizar, 863 F.2d 36, 38 (9th Cir. 1988) (per curiam) (observing that court would have affirmed an upward departure based on a sophisticated scheme moving large numbers of aliens over a period of time) (dicta).
Turning to the second step of the Lira-Barraza test, the record amply supports the district court's finding that a large number of aliens were involved. According to the Presentence Report (PSR), at least 146 illegal aliens were transported in connection with the appellant's activities between January 24 and March 2, 1990. See PSR at 1-7. We find that this constitutes "large numbers of aliens" for the purpose of an upward departure under U.S.S.G. § 2L1.1. See, e.g., United States v. Lopez-Escobar, 884 F.2d 170, 171, 173 (5th Cir. 1989) (observing that thirty-five aliens was an "extraordinary number of aliens" and warranted an upward departure).
Finally, we find that the extent of the departure from the Guidelines was reasonable. "Reversal is required only if the choice [of a departure sentence] is 'unreasonable' in light of the standards and policies incorporated in the Act and the Guidelines." Lira-Barraza, 941 F.2d at 751.
Within criminal history category II, Martinez-Gonzalez' sentence was increased from an offense level of thirteen, with a Guidelines range of 15 to 21 months, to level fifteen, with a range of 21 to 27 months. At the sentencing hearing, the Judge carefully stated her reasons for this departure. She first observed that the "very sophisticated" smuggling organization was "extensive and large," as well as "well organized and efficient." She supported her Conclusions by noting: 1) that drivers brought persons across the border on numerous occasions to Martinez-Gonzalez' home, which operated as a drop house, 2) that Martinez-Gonzalez arranged for further transportation of the aliens north, and 3) that she also arranged for the aliens' safekeeping in both San Diego and Los Angeles. The Judge also referred to the numerous trips and some of the large numbers of aliens involved. Based on the court's statements, we cannot say that the court abused its discretion in departing upward by two levels.
In reviewing the reasonableness of the extent of departure, we also find a useful structural analogy in the numerous Guidelines offenses requiring a two-level increase in the base offense level if "more than minimal planning" is involved. See, e.g., U.S.S.G. § 2A2.1(b)(1) (assault with intent to commit murder); § 2B1.1(b)(4) (larceny, embezzlement and other forms of theft); § 2B1.2(b)(3)(B) (receiving, transporting or transmitting stolen property); U.S.S.G § 2F1.1(b)(2) (fraud). "More than minimal planning" is generally deemed present in any case involving repeated acts over a period of time. See U.S.S.G. § 1B1.1, comment. (n. 1(f)). Because the large numbers of aliens transported over a ...