United States v. Jorge Perez-Magana, AKA Alfredo Mendoza-Equihua

Appellant Jorge Perez-Magana appeals the district court’s imposition of a 30-month sentence for transporting illegal aliens, which included an upward departure from the 6-12 month sentencing range suggested by the Sentencing Guidelines. While appellant concedes that the district court could depart and that it explained its departure, he argues that its degree of departure was unreasonable and that the court failed to give reasons for this degree. Because the district court did not give an adequate explanation for its great degree of departure, we must vacate the sentence and remand this case for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was arrested on September 28, 1989, and indicted on October 11 on two counts of transporting illegal aliens in violation of 8 U.S.C. § 1324 (a)(1)(B). Near San Ysidro, California, a U.S. Border Patrol agent watched as a tan sedan driven by appellant pulled over near the international border fence and five aliens got in. After the officer followed the sedan and activated his flashing red lights and siren, appellant initially slowed and moved to the side of the road, while watching the agent in his rearview mirror. About thirty…