argued submitted pasadena california: July 15, 1993.
Appeal from the United States District Court for the Central District of California. D.C. No. CR-92-00739-R. Manuel L. Real, Chief District Judge, Presiding.
Before: Harlington Wood, Jr.,*fn* Stephen Reinhardt, and Pamela Ann Rymer, Circuit Judges. Opinion by Judge Wood; Dissent by Judge Rymer.
WOOD, Senior Circuit Judge:
Defendant contends the district court misinterpreted the United States Sentencing Commission's Guidelines Manual and applied the wrong guideline. We agree, and for the reasons stated below we vacate Defendant's sentence and remand for resentencing.
Not many of us carry around $51,000 in cash, but Alfonso Mendoza-Fernandez was doing so on August 5, 1992. As Fernandez prepared to board a flight to Mexico from the Los Angeles International Airport, he was stopped by an inspector for the United States Customs Service. The inspector was conducting what the government terms "an outbound currency examination." In other words, he was checking passengers to see how much money they were carrying.
Speaking in English, the inspector informed Mendoza- Fernandez it was legal to transport money out of the country but that Mendoza-Fernandez must tell the inspector if he was carrying more than $10,000 in cash or checks. Mendoza- Fernandez stated he understood the law. The inspector then asked Mendoza-Fernandez how much money he was carrying and Mendoza-Fernandez responded that he had approximately five to six thousand dollars in his boot, wallet, and pocket. At the inspector's request, Mendoza-Fernandez produced the money which totaled $5,500. The inspector asked Mendoza-Fernandez if that was all the money he was carrying. Mendoza-Fernandez replied it was.
The inspector's attention then switched to Mendoza- Fernandez's carry-on duffle bag. In response to the inspector's questions, Mendoza-Fernandez stated that there was no money in his bag, that he had packed the bag, and that everything inside the bag belonged to him. Opening the duffle bag, the inspector found six bundles of cash wrapped in socks and bed sheets. The cash totaled approximately $45,600. When the inspector asked Mendoza-Fernandez about the money, Mendoza- Fernandez replied that he spoke very little English and began to give his responses in Spanish.
Mendoza-Fernandez was taken to another examination area, an agent was brought in who spoke Spanish, and that agent advised Mendoza-Fernandez in Spanish that he was under arrest for illegal exportation of currency exceeding $10,000 without proper notification to the Customs Service. The agent then read Mendoza-Fernandez his Miranda rights. A few days later a grand jury indicted Mendoza-Fernandez for having "knowingly and willfully" made a "false statement as to a material fact" regarding a matter within the jurisdiction of a United States agency. On October 6, 1992, two months after attempting to board the plane, Mendoza-Fernandez pled guilty to this violation of 18 U.S.C. § 1001.
On December 7, 1992, Mendoza-Fernandez appeared in district court for a sentencing hearing. The court adopted the sentencing recommendation contained in the probation officer's presentence report. The report noted that the sentencing guideline customarily applied to violations of 18 U.S.C. § 1001 is § 2Fl.1.That guideline is entitled "Fraud and Deceit" and sets a base offense level at six. An application note to the guideline, however, states that due to the many offenses that may be prosecuted under 18 U.S.C. § 1001, another sentencing guideline may fit the facts of the case more closely. In that case, the other guideline should be used:
Sometimes, offenses involving fraudulent statements are prosecuted under 18 U.S.C. § 1001, or a similarly general statute, although the offense is also covered by a more specific statute. Examples include . . . false statements to a customs officer, for which § 2T3.1 likely would be more apt . . . . Where the indictment or information setting forth the count of conviction . . . establishes an offense more aptly covered by another guideline, apply that guideline rather than § 2Fl.l.
U.S.S.G. § 2Fl.l, comment. (n.l3).
Heeding the application note, the presentence report recommended using another guideline. Instead of applying § 2T3.l as an alternative to § 2Fl.1, which the application note itself recommends, the presentence report recommended applying § 2S1.4. Guideline § 2T3.l covers "Evading Import Duties or Restrictions (Smuggling); Receiving or Trafficking in Smuggled Property." This guideline is located in Part T of the Guidelines Manual, which handles "Offenses Involving Taxation." Guideline § 2S1.4 is for "Failure to File Currency and Monetary Instrument Report"; it is found in Part S of the Manual, directed at "Money Laundering and Monetary Transaction Reporting."
Guideline § 2S1.4 sets a base offense level at nine. The presentence report reduced that offense level by two levels in recognition of Mendoza-Fernandez's acceptance of responsibility for his crime pursuant to § 3El.l. The total offense level was thus seven. It is difficult to tell what Mendoza-Fernandez's total offense level would have been had the probation officer and the court followed guideline § 2T3.l. The base offense level is tied to the tax loss that defendant's conduct caused to the government. Here, there may have been no such loss. Neither the probation officer nor the district court determined how § 2T3.l should be applied in such cases and we shall not attempt the task ...