United States v. Lira-Barraza

Jose Jesus Lira-Barraza appeals a sentence of 36 months and a special assessment of $50 imposed under the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3351, et seq. (1988) (“the Act”), on his plea of guilty to illegal transportation of aliens in violation of 8 U.S.C. § 1324. The district court departed from the 0 to 6 months range recommended by the United States Sentencing Guidelines [“U.S.S.G.” or “Guidelines”] because Lira-Barraza, in an attempt to evade apprehension, drove his car carrying a number of undocumented aliens at high speeds and in a dangerous manner. A panel of this court affirmed the sentence, except the special assessment, relying on United States v. Ramirez-DeRosas, 873 F.2d 1177, 1179 (9th Cir.1989), which upheld a departure to 30 months from a Guideline range of 0 to 4 months based upon a similar high-speed chase. See United States v. Lira-Barraza, 897 F.2d 981, 987-88 (9th Cir.1990). We granted rehearing en banc. United States v. Lira-Bar-raza, 909 F.2d 1370 (9th Cir.1990).

18 U.S.C. § 3553(b) requires a court to sentence a defendant within the applicable Guideline range unless “the court 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.” The panel set forth a five-step process for reviewing sentences outside the applicable Guideline range. These five steps may be combined into three.

The first is to determine whether the district court had legal authority to depart. By the terms of 18 U.S.C. § 3553(b), the district court may not depart from the applicable Guideline range unless it identifies an aggravating circumstance of a kind or to a degree the Commission did not adequately take into account when formulating the Guidelines. If the circumstance is one not adequately considered, the court is legally authorized 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.

As the panel explained, whether the Commission adequately took the circumstance into account is a question of law, subject to plenary review. Lira-Barraza, 897 F.2d at 985. Whether consideration of the circumstance is inconsistent with section 3553(a) and the Guidelines is also a question of law reviewed de novo since it involves determining the statute’s meaning and the Commission’s intent. If the district court has authority to depart, the court’s decision to depart or not (as distinguished from the extent of departure if the court decides to depart) is left to the court’s discretion.

In this case, the district court identified Lira-Barraza’s participation in a high-speed chase as the aggravating circumstance. The Commission’s express statement in Application Note 8 of U.S.S.G. § 2L1.1, that the Commission did not consider the existence of this circumstance in formulating the Guidelines and that departure should be considered, established beyond argument that departure was legally authorized.

Second, we review for clear error factual findings supporting the existence of the identified circumstance. 18 U.S.C. § 3742(d). Since Lira-Barraza did not dispute the existence of the circumstances relied on by the district court as the basis for departure, the court’s finding that these facts existed obviously met the clearly erroneous standard. See Lira-Barraza, 897 F.2d at 987.

Third, we must determine whether the extent of departure from the applicable Guideline range was “unreasonable” within the meaning of 18 U.S.C. § 3742(e)(3) and (f)(2), which define the standard of appellate review. This is the issue presented for decision by Lira-Barraza.

Lira-Barraza argues that to realize Congress’ purpose of reducing unwarranted disparity in sentencing the courts should consider the sentencing scheme established by the Act and the Guidelines in determining whether the extent of a departure is “reasonable;” that there is nothing in the district court’s sentencing statement indicating the court did so; and that the sentence imposed is inconsistent with such an approach. Lira-Barraza points out that his 36-month sentence is six times greater than the maximum provided by the applicable Guideline range, and falls within the range provided for what he regards as significantly more serious offenses. Lira-Barraza also points out that although the departure was equivalent to a 13 to 14 level increase in the base offense level, the Commission in a subsequent amendment to the applicable Guideline provided that the circumstances the court relied upon for departure justified an increase of only two levels.

The government responds that the extent of departure is within the discretion of the district court and need not be justified by reference to other provisions of the Guidelines. The government contends the purpose of the Guidelines is to prevent disparity in “typical” or “heartland” cases, see United States Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, intro, comment. (4(b)) (1990) [hereinafter “Guidelines Manual”], and not in the “atypical” cases in which departure is permitted. Unguided departures, the government argues, are essential to the evolutionary process through which the Commission learns from the experience of sentencing judges reflected in departure sentences and adjusts the Guidelines accordingly. See Lira-Barraza, 897 F.2d at 985.

The government relies upon a line of cases that emphasizes the discretion vested in the district court to determine the degree of departure, and rejects any approach requiring the district court to add mechanically sentence ranges drawn from potentially analogous provisions in the Guidelines. We agree that determining the degree of departure is inevitably and properly a discretionary judgment. It does not follow, however, that the judge’s discretion is not limited by the judgments of the Congress and the Commission reflected in the Act and in the Guidelines. There are many reasons for concluding departure sentences should be consciously measured against these standards.

Congress regarded “unwarranted sentencing disparity” as “a major flaw in the existing criminal justice system,” S.Rep. No. 225, 98th Cong., 1st Sess. 65, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3248, attributable to “the lack of any statutory guidance or review procedures to which courts and parole boards might look.” Id. at 38, reprinted in 1984 U.S.Code Cong. & Admin.News at 3221 (footnote omitted). The solution to the problem was to abolish the parole system entirely and provide “a comprehensive statement of the Federal law of sentencing” for the guidance of the courts. Id. at 50, reprinted in 1984 U.S.Code Cong. & Admin.News at 3233. The Act “creates a sentencing guidelines system that is intended to treat all classes of offenses committed by all categories of offenders consistently.” Id. at 51, reprinted in 1984 U.S.Code Cong. & Admin.News at 3234 (emphasis added; footnote omitted); see also id. at 52, reprinted in 1984 U.S.Code Cong. & Admin.News at 3235. Specifically, “the judge is directed to impose [a] sentence after a comprehensive examination of the characteristics of the particular offense and the particular offender.... This will assure that the probation officer and the sentencing judge will be able to make informed comparisons between the case at hand and others of a similar nature.” Id. at 53, reprinted in 1984 U.S.Code Cong. & Admin.News at 3236; see also id. at 52, reprinted in 1984 U.S.Code Cong. & Admin.News at 3235.

Congress’ perception of the problem, the cause, and the solution supports Lira-Bar-raza’s interpretation of the statute and undercuts that proposed by the government. The problem was disparity. Its cause was unlimited judicial discretion. The remedy was a single statutory sentencing structure guiding the discretion of the court in all cases to the end that similar sentences would be imposed on similar offenders for similar offenses.

Recognition of sentencing discretion to be exercised in departure cases alone without regard to the sentencing system established by the Act would be inconsistent with the statute’s purpose and structure. It would create an exception in a Federal sentencing system Congress intended to be comprehensive, risking return in this category of cases to the unwarranted sentencing disparity Congress sought to eliminate. See United States v. Kikumura, 918 F.2d 1084, 1110-111 (3d Cir.1990); United States v. Pearson, 911 F.2d 186, 190 (9th Cir.1990); United States v. Ferra, 900 F.2d 1057, 1062 (7th Cir.1990).

There is nothing in the structure of the statute or the nature of this group of cases to justify such an exception. Departure is allowed in these cases because they involve an aggravating or mitigating circumstance the Commission did not identify in formulating the applicable Guidelines. The omission of a particular circumstance was not based on any notion that the nature of the omitted circumstance required an exercise of sentencing discretion unrelated to the Guideline structure. Rather, certain offense characteristics were referred to in the Guidelines because they were typically associated with the particular offense; other circumstances were omitted because they were not typically associated with the offense and it was simply impossible to list all potentially relevant conduct. In short, there is no difference between offense characteristics referred to in the Guidelines and those that are not that would justify applying the statutory sentencing system of imposing similar sentences for similar conduct by similar offenders as to one but not the other.

Other provisions of the statute and Guidelines support the conclusion that departure sentences are limited by the sentencing structure established by the Act. The Act provides that the courts shall consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). This statutory directive applies to all sentences, including those departing from the Guideline range applicable to a particular offense, and requires, at a minimum, that departure sentences be consistent with other sentences fixed by the Guidelines or suggested by Commission standards and policies.

The statute further requires that in determining the sentence to be imposed for an offense for which there is no applicable Guideline, the courts must “hav[e] due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission.” 18 U.S.C. § 3553(b). Similarly, the Commission has directed if “no guideline expressly has been promulgated, apply the most analogous offense guideline.” U.S.S.G. § 2X5.1. There is no apparent reason why the courts should be required to link to the sentencing structure of the Act a sentence imposed for an offense for which there is no Guideline at all, but would be free to disregard the sentencing structure when there is a Guideline specifically applicable to the offense but an atypical aggravating circumstance is present. As the Seventh Circuit said in United States v. Ferra,

In departing the judge should compare the seriousness of the aggravating factors at hand with those the Commission considered. Congress prescribed the method of analogy for crimes without guidelines, 18 U.S.C. § 3553(b), and it is equally appropriate for crimes with guidelines but without sufficient detail in the lists of aggravating and mitigating circumstances.

Ferra, 900 F.2d at 1062; see also Kikumu-ra, 918 F.2d at 1112.

The Act directs the court of appeals upon review of the record to determine if a sentence outside the applicable guideline range is “unreasonable,” 18 U.S.C. § 3742(e)(3), having regard for the provisions of section 3553(a), which, as noted earlier, require the district court, inter alia, to avoid unwarranted disparities among defendants with similar records who are guilty of similar conduct. The reasonableness of sentences determined without reference to identified standards would not be susceptible to rational review. A sentence imposed under a standard requiring consistency with sentences imposed on other defendants with similar records who are guilty of similar conduct is readily reviewed in light of the standards and policies of the Act itself.

The Guidelines provide that in determining the sentence to be imposed when a departure is based upon the inadequacy of a defendant’s criminal history category, the court must “use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable.” U.S.S.G. § 4A1.3. As the Seventh Circuit has said, “[although the Commission did not discuss whether the same approach should be used for departures based on the seriousness of the crime, it makes sense to do so.” Ferra, 900 F.2d at 1062; see also Kikumura, 918 F.2d at 1111. As Lira-Barraza points out, allowing a court unlimited discretion in sentencing when departing on the basis of an atypical circumstance not mentioned in the Guidelines could yield the anomalous result of a defendant with a serious criminal history receiving a lower sentence than a first time offender committing an offense in which departure was possible because of an atypical circumstance not mentioned in the Guidelines.

The government contends this anomaly was expressly anticipated by the Commission. The government relies upon a passage in the Guidelines Manual distinguishing “two different kinds of departures”— those in which departure by analogy or by a specific amount is recommended in the Guidelines, and all other departures, which, the Manual states, “will remain unguided.” See Guideline Manual, Ch. 1, Pt. A, intro, comment (4(b)). The quoted phrase, the government argues, means that when a specific amount of departure or an appropriate analogy is not suggested the extent of the departure is to be determined without any reference to Guideline standards at all. We reject the government’s implication. The Commission nowhere states that a district court’s sentencing discretion is limitless when the extent of departure is not specifically guided. It is a more reasonable reading that the Commission intended only to recognize that departures were recommended in some circumstances, but courts could also depart in circumstances not specifically suggested.

We also reject the government’s argument, referred to by the panel, Lira-Bar-raza, 897 F.2d at 985, that unrestrained sentencing discretion in departure cases is “crucial” to the “evolutionary process” through which the Commission is to improve the Guidelines on the basis of the experience of sentencing courts reflected in the sentences they impose and the reasons they give for imposing them. Clearly the Commission will gain more useful guidance from sentences arrived at through analysis of the relationship of the case at hand to the standards and policies already incorporated in the Guidelines, than from sentences that are simply ad hoc.

As we have said, determining the appropriate degree of departure is necessarily a discretionary judgment vested initially in the district court. The question is not the existence of discretion, however, but the standards that must govern the district court in its exercise. As Congress stated: “The sentencing guidelines system will not remove all of the judge’s sentencing discretion. Instead, it will guide the judge in making his decision on the appropriate sentence.” S.Rep. No. 225, 98th Cong., 1st Sess. 51, reprinted in 1984 U.S.Code Cong. & Admin.News at 3234.

In requiring that departure sentences are to be determined in light of the structure, standards and policies of the Act and Guidelines, we adhere to our decision in United States v. Pearson, 911 F.2d at 190-91, and join the Second, Third, Fourth, Seventh, Tenth, and Eleventh Circuits. See United States v. Kim, 896 F.2d 678, 684-85 (2d Cir.1990); Kikumura, 918 F.2d at 1111-13; United States v. Hummer, 916 F.2d 186, 194 & n. 7 (4th Cir.1990); Ferra, 900 F.2d at 1062-63; Jackson, 921 F.2d 985, 990-91; United States v. Shuman, 902 F.2d 873, 876-77 (11th Cir.1990).

We review the degree of departure to determine whether it is “unreasonable.” 18 U.S.C. § 3742(e)(3). The statute does not mean every possible sentence but one is “unreasonable” — a reasonableness standard assumes a range of permissible sentences. We give weight to the district court’s choice within a permissible range. Reversal is required only if the choice is “unreasonable” in light of the standards and policies incorporated in the Act and the Guidelines.

As we noted at the outset, the district court’s statement of reasons for departing from the 0 to 6 months Guidelines range to impose a sentence of three years contained no reasons for the length of the sentence. Such a statement for sentences outside the Guidelines “is especially important. ... [It] will play an important role in the evaluation of the reasonableness of the sentence.” S.Rep. No. 225, 98th Cong., 1st Sess. 80, reprinted in 1984 U.S.Code & Admin.News at 3263. To facilitate appellate review the district court’s statement should include a reasoned explanation of the extent of the departure founded on the structure, standards and policies of the Act and Guidelines.

The sentence is VACATED and the case REMANDED for further proceedings.

. This case is not moot. Lira-Barraza is presently serving a two-year term of supervised release. This appeal may have a direct effect on this portion of his sentence. Supervised release is not mandatory for a violation of section 1324(a). The district court imposed the term of supervised release in this case because the Guidelines require such a condition when a sentence of imprisonment exceeding one year is imposed. See U.S.S.G. §§ 5D1.1 and 5D1.2(b)(2). Contrary to the government’s contention, if, as a result of this appeal, Lira-Barra-za were resentenced to a term of imprisonment of less than one year, imposition of supervised release will be discretionary. Since our decision may affect Lira-Barraza’s sentence, we need not consider whether collateral consequences alone are sufficient to create a live controversy.

. The test as stated by the panel is as follows:

(1) whether the district judge adequately identified the "aggravating or mitigating circumstance" ...;

(2) whether the identified circumstance actually existed;

(3) whether the circumstance was adequately taken into consideration by the Sentencing Commission;

(4) if not, whether the circumstance should result in departure; and,

(5) whether the extent or degree of departure was unreasonable.

Lira-Barraza, 897 F.2d at 983.

. Lira-Barraza also challenged his sentence as violative of the Due Process and Cruel and Unusual Punishment clauses. We do not reach these constitutional issues.

. Although the district court stated its reasons for departing from the Guideline range as required by 18 U.S.C. § 3553(c), the court’s statement contains no explanation of the extent of the court’s departure from the Guideline range. See Lira-Barraza, 897 F.2d at 986-87 n. 12.

. Under the 1987 version of the Guidelines with amendments effective January 15, 1988, Lira-Barraza’s base offense level under U.S.S.G. § 2L1.1 was 6. Because no adjustments were applicable and Lira-Barraza had a criminal history category of I, the recommended sentencing range was 0 to 6 months. Lira-Barraza’s 36-month sentence falls within the range applicable to a defendant with a criminal history category of I and a base offense level of 19.

. Lira-Barraza lists the following example in his brief based upon the 1987 version of the Guidelines: (1) assault with intent to commit murder; conspiracy or solicitation to commit murder; attempted murder: base offense level of 20 (§ 2A2.1); (2) aggravated assault resulting in serious bodily injury: base level 15 plus 4 (§ 2A2.2(b)(3)); (3) burglary of a residence while armed: base level of 17 plus 2 (§ 2B2.1(b)(4)); (4) robbery resulting in serious bodily injury: base level 18 plus 2 (§ 2B3.1(b)(3)(A)); (5) extortion by force of threat resulting in bodily injury: base level 18 plus 2 (§ 2B3.2(b)(3)(A)); (6) coercive transportation of a minor for purposes of prostitution: base level 16 plus 4 (§ 2G1.2); (7) arson, where the defendant recklessly endangered the safety of others: base level 6 plus 14 (§ 2K1.4(b)(2)).

. See U.S.S.G. § 3C1.2 (1990) (“If the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.”).

. See United States v. Lang, 898 F.2d 1378, 1380 (8th Cir.1990); United States v. Burns, 893 F.2d 1343, 1347 (D.C.Cir.1990); United States v. Joan, 883 F.2d 491, 496 (6th Cir.1989); United States v. Diaz-Villafane, 874 F.2d 43, 51-52 (1st Cir.1989); United States v. Roberson, 872 F.2d 597, 607 (5th Cir.1989).

. See also S.Rep. No. 225, 98th Cong., 1st Sess. 41, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3224 (footnote omitted) ("The absence of a comprehensive Federal sentencing law and of statutory guidance on how to select the appropriate sentencing option creates inevitable disparity in the sentences which courts impose on similarly situated defendants.”); id. at 49, reprinted in 1984 U.S.Code Cong. & Admin.News at 3232 ("The lack of reasonable consistency in the sentences handed down by the courts is due in large part to the lack of a comprehensive Federal sentencing law. Federal statutes should provide clear guidance to Federal judges on how to select from among the available alternatives an appropriate sentence to impose upon the particular defendants before them. This disparity is fair neither to the offenders nor to the public.”).

. See Guidelines Manual, Ch. 1, Pt. A, intro comment (4(b)); U.S.S.G. § 5K2.0; United States v. Jackson, 921 F.2d 985, 988 (10th Cir.1990); Ferra, 900 F.2d at 1062.

. We reject the government’s suggestion that limitless discretion is appropriate in departure cases because, "pursuant to § 1B1.4 of the Guidelines, a sentencing court may consider a greater range of information when choosing a departure sentence than was considered when the Sentencing Commission calculated the Guideline ranges.” U.S.S.G. § 1B1.4 permits the court to consider an unlimited range of information ‘‘[i]n determining the sentence to impose within the guideline range." The potential sentencing range is greater in departure cases, of course; that is the very purpose of allowing departure. But the information the court can consider in determining the specific sentence is no different, and U.S.S.G. § 1B1.4 says nothing as to whether departure sentences should be linked to the structure, provisions, and policies of the Act and Guidelines.

.Cf. United States v. Perez-Magana, 929 F.2d 518, 521-22 (9th Cir.1991) (requiring specific statement of reasons for degree of departure in order to effectuate meaningful appellate review); United States v. Wells, 878 F.2d 1232, 1233 (9th Cir.1989) (same).

. Judge William W. Wilkins, Jr., Chairman of the Sentencing Commission, recently said:

The guidelines do not provide a perfect system, but compared with the system of the past they make substantial improvement and greatly increase uniformity and proportionality in sentencing. A judge’s discretion is not abolished under the guidelines and should not be. However, the guidelines do structure the exercise of this discretion so that similar defendants who commit similar crimes are generally sentenced in a similar manner.

Interview with Judge William W. Wilkins, Jr.: Designing a Fair and Uniform Sentencing System, The Third Branch, Mar. 1991, at 10.

It is the function of the district court to rationalize the basis for the degree of departure. Jackson, 921 F.2d at 990 n. 2; Kikumura, 918 F.2d at 1113-14. The essential factor is that the extent of departure be based upon objective criteria drawn from the Sentencing Reform Act and the Guidelines. Possible criteria include comparison of the seriousness of the atypical circumstance to offenses or enhancements in the Guidelines, Ferra, 900 F.2d at 1062; treatment of the circumstance as a separate offense covered by the Guidelines, id.; and consideration of the structure of the sentencing table, in particular, the increments between guideline ranges, Jackson, 921 F.2d at 993.

. We affirm the special assessment imposed upon Lira-Barraza. See United States v. Munoz-Flores, — U.S. -, 110 S.Ct. 1964, 1974, 109 L.Ed.2d 384 (1990).