United States v. Arturo Munster-Ramirez, AKA David Otto Munster

888 F.2d 1267 UNITED STATES of America, Plaintiff-Appellee, v. Arturo MUNSTER-RAMIREZ, aka David Otto Munster, Defendant-Appellant. No. 88-5263. United States Court of Appeals, Ninth Circuit. Submitted June 29, 1989. * Decided Nov. 7, 1989. Grant Eddy, San Diego, Cal., for defendant-appellant. Bruce R. Castetter, Asst. U.S. Atty., Chief, Appellate Section, Crim. Div., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before ALARCON and NELSON, Circuit Judges, and ROSENBLATT, ** District Judge. ALARCON, Circuit Judge: 1 Arturo Munster-Ramirez appeals from the judgment of the district court entered after he pled guilty to transportation of an illegal alien under 8 U.S.C. Sec. 1324 (a)(1)(B) and commission of the offense of transportation of an illegal alien while on release from a previous indictment for transportation of illegal aliens under 18 U.S.C. Sec. 3147 . Munster-Ramirez had an offense level of 13 and a criminal history category of VI resulting in a sentencing range under the Sentencing Guidelines of 33 to 41 months for transportation of an illegal alien. The district court sentenced…

Arturo Munster-Ramirez appeals from the judgment of the district court entered after he pled guilty to transportation of an illegal alien under 8 U.S.C. § 1324 (a)(1)(B) and commission of the offense of transportation of an illegal alien while on release from a previous indictment for transportation of illegal aliens under 18 U.S.C. § 3147 . Munster-Ramirez had an offense level of 13 and a criminal history category of VI resulting in a sentencing range under the Sentencing Guidelines of 33 to 41 months for transportation of an illegal alien. The district court sentenced Munster-Ramirez to 33 months for transportation of an illegal alien. This sentence was to run consecutively to the sentence imposed in another criminal case against him involving transportation of illegal aliens. The district court also ordered a two-year period of supervised release after his term of imprisonment. Munster-Ramirez was given a one-year suspended sentence for violation of 18 U.S.C. § 3147 . On appeal, he challenges only his sentence. He contends that (1) the Sentencing Guidelines are unconstitutional; (2) the district court erred in applying section 4B1.3, the criminal livelihood section, of the…

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…