United States v. Jose Jesus Lira-Barraza

941 F.2d 745 60 USLW 2112 UNITED STATES of America, Plaintiff-Appellee, v. Jose Jesus LIRA-BARRAZA, Defendant-Appellant. No. 88-5161. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc Feb. 21, 1991. Decided July 22, 1991. Judy Clarke, Federal Defender of San Diego, San Diego, Cal., for defendant-appellant. Bruce R. Castetter, Asst. U.S. Atty., and Carol C. Lam, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before WALLACE, Chief Judge, BROWNING, HUG, TANG, FLETCHER, PREGERSON, D.W. NELSON, REINHARDT, HALL, THOMPSON, and O'SCANNLAIN, Circuit Judges. JAMES R. BROWNING, Circuit Judge: 1 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 . 1 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…

concurring in part and concurring in the judgment:

The scope of my disagreement with the majority is narrow. I agree with the majority’s statement of the standard of review for evaluating Guidelines departures. I also conclude that Lira-Barraza’s sentence should be vacated. However, I cannot join in the majority’s discussion of the standards that must govern the district judge when determining the extent of a Guidelines departure. Therefore, I write separately.

I

As I read it, the majority opinion vacates the sentence and remands without considering whether the sentence imposed was unreasonable. Rather, the majority holds that the district judge’s failure to provide an explanation of the extent of departure in terms of the structure of the Sentencing Guidelines constitutes per se grounds for reversal. I do not believe this result is supported by the Sentencing Reform Act (Act) or the Guidelines. Therefore, I conclude we should join the other circuits which have held that an explanation of the extent of departure in terms of analogous Guidelines provisions is recommended, but not required.

Analysis of our role in evaluating Guidelines departures should begin with 18 U.S.C. §…

concurring in part and concurring in the judgment:

I concur in the majority’s decision that we should review departures from the guidelines in three steps rather than five. Majority at 745-46. I also concur in the judgment. I write separately, however, because the majority opinion fails to provide clear guidance to the district courts and *754 because I disagree with the majority that Congress and the Sentencing Commission intended to limit a sentencing court’s discretion in selecting a sentence outside an applicable guideline range.

I

The majority holds that “departure sentences are to be determined in light of the structure, standards and policies of the Act and Guidelines.” Majority at 750-51. The majority neither defines this “standard” nor tells the district courts how it is to be applied.

Although the majority’s holding might be read as nothing more than a general requirement that a departing court must look to the Sentencing Reform Act and the Sentencing Guidelines for guidance in formulating an appropriate sentence, other parts of the opinion suggest a far more rigid requirement. We are told that “[t]he essential factor” in a district court’s departure decision “is…

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 viola *746 tion of 8 U.S.C. § 1324 . 1 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…