dissenting:

I dissent because I do not believe that Mr. Munster-Ramirez’s income from transporting illegal aliens across the United States border is high enough to qualify as a “substantial portion of his income” and therefore enhance his sentence under the United States Sentencing Guidelines. While I agree with the majority’s conclusion that the standard for measuring “substantial portion of income” is a relative one, I believe that the legislative history of the provision requires that the income from the criminal conduct reach a minimum amount in order to qualify as “substantial” and enhance a defendant’s sentence. The amount that Mr. Munster-Ramirez received from transporting illegal aliens does not meet that minimum amount. This interpretation is also consistent with the direction to the Sentencing Commission to draft sentences which do not discriminate on the basis of socioeconomic status.

*1274 I agree with the majority’s conclusion that in calculating whether or not the defendant should be subjected to sentence enhancement, the income derived from criminal conduct must be measured against the defendant’s total income. The guideline explicitly states “[i]f a defendant committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income, the offense level should not be less than 13.” United States Sentencing Commission, Guidelines Manual § 4B1.3 (hereafter “Guidelines Manual ”) (emphasis added). This language tracks the language of the statute mandating the promulgation of the guidelines: “The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant ... committed the offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income.” 28 U.S.C. § 994 (i). The guidelines seem to direct the sentencing judge to ask, “was the income from criminal conduct a substantial portion of this defendant’s income?”, and not “was the income from criminal conduct substantial in absolute terms?” However, the guidelines do not define “substantial portion” or provide any explanatory information beyond the text of the section itself.

The legislative history to the statute directing enhancement for criminal income describes the source of this provision. “[This category is] derived from the dangerous special offenders sentencing provisions now contained in 18 U.S.C. § 3575 (e) and the dangerous special drug offender provisions of 21 U.S.C. § 849 (e)”. S.Rep. No. 225, 98th Cong., 2d Sess. 176, reprinted in, 1984 U.S.Code Cong. & Admin.News 3182, 3359. Since this portion of the sentencing guidelines is derived from an earlier sentencing enhancement scheme, examination of the earlier approach sheds important light on the Congressional conception of the current scheme.

The earlier dangerous special offenders provision and the dangerous special drug offenders provision contained sentence enhancement sections based on whether “a substantial portion of ... [the defendant’s] income” was earned through the activities for which he or she was convicted. Both statutes defined “substantial portion of his income” as:

18 U.S.C. § 3575 (e) (repealed in 1984); 21 U.S.C. § 849 (e) (repealed in 1984). Since the current criminal income provision in the sentencing guidelines is derived from the earlier statutes and contains almost identical language, it follows that Congress carried over the definition of the key phrase, “substantial portion of his income", from the earlier provision to its replacement. If Congress had intended a different definition in the sentencing guidelines, it would either have employed a different term than the term used in the earlier statute or would have explicitly defined the term in a different manner. 1 Instead, Congress merely referred back to the earlier statute and stated that this section of the sentencing guidelines is derived from that earlier statute. 2

*1275 I believe that sentencing courts should utilize this definition of substantial criminal income in applying the sentencing guidelines. As a result, the court should determine: (1) whether the income reached the level of a minimum wage salary, and (2) whether the income was at least fifty percent of the defendant’s gross income. Thus I agree with the majority opinion’s conclusion that the court must use a relative calculation, measuring the criminal income against the defendant’s total income. I depart from the majority in that I believe that the income must at least reach the level of minimu.m wage in order to qualify as “substantial”.

The United States Sentencing Commission was directed by statute to draft sentences which do not discriminate based on socioeconomic status. “The Commission shall assure that the guidelines and policy statements are entirely neutral as to race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994 (d) (emphasis added). A purely relative measurement of criminal income leads to precisely the type of discriminatory effect prohibited by this section of the statute. For example, if an indigent defendant is convicted of transporting illegal aliens across the border and is found to have done this eight times charging ten dollars a trip, a court using a relative measurement of substantial income would have to conclude that for an impoverished man eighty dollars qualifies as a substantial portion of his income and therefore would have to enhance the defendant’s sentence. However, if a defendant’s socioeconomic status was anywhere above the poverty line, he or she would not have a sentence enhanced for earning eighty dollars transporting illegal aliens.

Utilizing a base level of income, such as minimum wage, before measuring the substantial portion of income minimizes the discriminatory effect of a purely relative measurement and therefore reflects the congressional dictate to be neutral as to socioeconomic status. Clearly some sort of base level of income must be employed. Without a base, five dollars could qualify as substantial income to a defendant who had no income at all. Since sentencing courts must therefore use some sort of base, the amount which would provide the most uniformity and clarity is the amount used in the predecessor statute, minimum wage.

The majority opinion concludes that the utilization of a measure other than the relative measure would be vague and ambiguous. Adopting the definition articulated in the dangerous special offender statutes would avoid this problem of ambiguity. A sentencing court would first calculate whether the criminal income equaled an income based on minimum wage and then would determine whether the criminal income exceeded fifty percent of the defendant’s total income. This test is clear, easily applied and, more importantly, balances the dual congressional mandates of penalizing those who make a living off of criminal conduct while not disproportionally penalizing those defendants who earn little or no income.

After applying this test to Mr. Munster-Ramirez, I conclude that he should not be subject to sentence enhancement under this provision. The record indicates that Mr. Munster-Ramirez was to be paid $300 for transporting illegal aliens in the commission of the offense for which he was convicted. In addition, he admitted to the probation office that he had transported aliens on other occasions. Therefore the sentencing court had evidence that Mr. Munster-Ramirez earned approximately $2,100.00 transporting illegal aliens across the border. This amount does not come close to equaling the minimum wage determined on the basis of a forty-hour week and a fifty-week year. 3 *1276 In spite of the fact that Mr. Munster-Ramirez’s income from transporting aliens across the border is greater than fifty percent of his total income, it is not high enough in itself to subject him to sentence enhancement. I dissent because I believe that this court should vacate Mr. Munster-Ramirez’s sentence and remand this case to the district court for resentencing based on a sentence level which does not include enhancement due to criminal income.

. The phrase in the earlier, dangerous special offenders statutes is “substantial source of his income". 18 U.S.C. § 3575 (e) (repealed in 1984); 21 U.S.C. § 849 (e) (repealed in 1984). The phrase used in the sentencing guidelines is “substantial portion of his income". Guidelines Manual, § 4B1.3. I see no significance in the change of the word "source” to "portion".

. The majority opinion states that if Congress had intended the earlier definition of substantial income to carry over to the sentencing guidelines, it would have included the definition in the statute. The majority opinion then goes on to conclude that the omission of any definition of substantial income in the Guidelines Manual means that the sentencing courts have discretion in defining the term and may choose the definition of the earlier statutes. However, one of the primary motivations behind implementation of federal sentencing guidelines was to remove much of the discretion involved in sentencing and to replace it with uniformity. Guidelines Manual at 1.2. Allowing discre *1275 tion in such a critical area as defining the term utilized in sentence enhancement could create widely disparate sentences. I believe that a more appropriate explanation for the Sentencing Commission's failure to define substantial income is that they felt that the definition already existed, in the earlier statute which served as a prototype for this provision.

. The current minimum wage is $3.35 an hour. 29 U.S.C. § 206 . Calculated over a forty-hour *1276 week and a fifty-week year, the income based on minimum wage would be $6,700.