Appeal from the United States District Court for the Southern District of California. DC No. CR-90-0841-R-1. John S. Rhoades, District Judge, Presiding.
Before: Canby, Reinhardt and Thompson, Circuit Judges
Antonio Marin-Colon appeals the district court's imposition of a forty-eight month sentence for the transportation of illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(b). We affirm.
Departure from the Guidelines
We require district courts to follow three steps before departing from the sentences required by the Guidelines. First, the district court must determine whether there existed an "aggravating circumstance of a kind or to a degree the Commission did not adequately take into account when formulating the Guidelines." United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir. 1991) (en banc). If the Commission did not adequately consider the circumstance, the district court had legal authority to depart "so long as the circumstance is consistent with the sentencing factors prescribed by Congress in 18 U.S.C. § 3553(a), with the Guidelines, and, of course, with the Constitution." Id. This court reviews de novo the district court's legal authority to depart. Id.
Second, the district court must find facts supporting the existence of the circumstance. Id. at 746-47. This court reviews those factual findings for clear error. Id. at 747; 18 U.S.C. § 3742(e). Third, the district court may depart only to a "reasonable" extent. See Lira-Barraza, 941 F.2d at 747-51; 18 U.S.C. §§ 3742(e)(3), 3742(f)(2). More precisely, the district court must provide "a reasoned explanation of the extent of the departure founded on the structure, standards and policies of the Act and Guidelines." Lira-Barraza, 941 F.2d at 751; see also United States v. Durham, 941 F.2d 858, 861-62 (9th Cir. 1991). This court reviews the "reasonableness" of the district court's departure for an abuse of discretion. United States v. Takai, 941 F.2d 738, 742 (9th Cir. 1991).
1. Legal Basis for Departure
Marin-Colon asserts that the Sentencing Commission rejected a proposed 1990 amendment to U.S.S.G. § 2L1.1 that would have permitted a two-level increase for violations of 8 U.S.C. § 1324(a) involving large groups of aliens. Marin-Colon argues that the rejection of the proposed amendment implied that the Commission disapproved of departures on these grounds.*fn1 This argument is meritless. Comment 8 to U.S.S.G. § 2L1.1 states: "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. " (Emphasis added). We conclude that comment 8 provided the district court with adequate legal authority to depart on the ground that Marin-Colon transported a large number of aliens.
Marin-Colon argues that the district court based the upward departure, in part, on an erroneous factual finding that Marin-Colon endangered the public safety.*fn2 The district court concluded that Marin-Colon endangered the motoring public's safety by leading the group of illegal aliens across an interstate freeway late at night. Marin-Colon does not attack the accuracy of the district court's factual finding; instead, he merely advances a different interpretation of the facts. Accordingly, we conclude that Marin-Colon has not satisfied his burden of demonstrating that the district court's finding was clearly erroneous.
Marin-Colon argues that the extent of the district court's departure was not "reasonable" because it was inconsistent with sentences required by the Guidelines for factually analogous offenses. We disagree. The district court considered but rejected an analogy to involuntary manslaughter, with a three-year maximum, as insufficient in light of the fact that seven children and three adults were led across a dangerous freeway at night. The court believed that a sentence more severe than that for manslaughter was justified because many more people were endangered than the one child who was killed. To impose a 48-month sentence in light of those facts was not unreasonable, and the court's explanation for its measured increase over the maximum sentence for ...