United States v. Juan Torres-Lopez

Citations: 13 F.3d 1308; 94 Cal. Daily Op. Serv. 158; 94 Daily Journal DAR 314; 1994 U.S. App. LEXIS 93; 1994 WL 1946Docket: 92-50652

Court: Court of Appeals for the Ninth Circuit; January 6, 1994; Federal Appellate Court

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Juan Torres-Lopez appealed a 36-month prison sentence imposed for transporting illegal aliens under 8 U.S.C. Sec. 1324(a)(1)(B). He argued that the district court improperly imposed a six-level upward departure based on a high-speed chase, asserting it constituted "double counting" since the incident was already addressed under Section 3C1.2 of the United States Sentencing Guidelines (Guidelines). Citing the precedent set in United States v. Lira-Barraza, the appeal contended that such upward departures must meet a specific three-part test, which the district court failed to satisfy.

The appeal court vacated Torres-Lopez's sentence and remanded for resentencing, determining that the upward departure was impermissible because the conduct had been sufficiently considered within the Guidelines framework. 

The facts revealed that on May 14, 1992, Border Patrol agents observed Torres-Lopez meeting four suspected illegal aliens, leading to a car chase where he drove at approximately 80 mph, ultimately stopping the vehicle for passengers to exit safely before it crashed into a tree. Although the chase lasted only a few minutes, two passengers expressed fear for their safety during the pursuit. Torres-Lopez maintained he was not receiving payment for the transport and pled guilty on July 6, 1992. His sentencing report calculated a criminal history category of V and a base offense level of nine, with various deductions and adjustments leading to a total offense level of 8, suggesting a guideline range of 15-21 months imprisonment prior to the upward departure recommendation.

At the sentencing hearing, the district court accepted the probation officer's recommendation of a 15-21 month guideline range but then imposed a six-level upward departure due to reckless endangerment during a high-speed chase, raising the range to 33-41 months. Torres-Lopez was sentenced to 36 months, the midpoint of this new range. The court provided a detailed rationale for this departure, referencing United States v. Hernandez-Rodriguez, which allows upward departure in similar cases. The court emphasized the egregious nature of the conduct, noting that abandoning a moving car constituted dangerous treatment of the aliens involved. The court analogized the vehicle to a "weapon" warranting a four-level enhancement and Torres-Lopez's reckless driving to operating a common carrier under the influence, warranting a two-level enhancement. These were aggregated for a total six-level upward departure.

The legal framework for evaluating such departures was established in Lira-Barraza, which sets forth a three-part test: de novo review of the "unusual circumstance," clear error review of factual findings, and reasonableness review of the extent of the departure. The case's primary issue involves whether Torres-Lopez's chase presented "unusual circumstances" justifying an upward departure beyond the two-level enhancement for reckless endangerment as outlined in U.S.S.G. Sec. 3C1.2. Both parties agree on the applicability of this two-level enhancement due to the substantial risk created by the flight. The key question remains whether the circumstances of Torres-Lopez's actions warrant a further departure, as authorized only in atypical cases that significantly differ from the guideline's typical heartland cases.

The Guidelines permit an upward departure for offenses involving significant numbers of aliens or inhumane treatment, specifically under U.S.S.G. Sec. 2L1.1, comment (n. 8). Courts have upheld sentences with enhancements from Section 3C1.2 in cases of dangerous flight but have restricted departures to situations where the defendant engaged in high-speed, reckless driving while endangering aliens treated like cargo. In Hernandez-Rodriguez, the court noted a departure was justified when the defendant traveled for over three hours at high speeds with aliens packed into a two-seat vehicle. Similarly, in Cruz-Ventura, a departure was warranted for a high-speed chase with aliens locked in a trunk.

The critical factor is the peril faced by illegal aliens during such chases. The Hernandez-Rodriguez ruling clarifies that the danger posed by the transporter to the passengers can justify departure, but not in every high-speed case involving multiple individuals. In this case, Torres-Lopez's flight from border agents, lasting only a few minutes and covering less than five miles, did not rise to the level of danger seen in the precedent cases. Unlike those cases, his vehicle was not overloaded, and all passengers were in the passenger compartment, not treated as cargo. Although his actions posed some risk, they fell within the typical limits of Section 3C1.2, and the abandonment of the vehicle did not significantly alter this assessment.

The district court's justifications for an upward departure in Torres-Lopez's sentencing are flawed. It referenced U.S.S.G. Sec. 5K2.6 regarding the vehicle as a "dangerous instrumentality," but a vehicle only qualifies as such if used with intent to cause harm, which was absent in this case. The court also cited Torres-Lopez's actions in leading aliens across Interstate 805; however, he was not being pursued and had the opportunity to cross safely when traffic permitted, with no evidence of unsafe conduct. Even if the crossing was deemed unsafe, it falls under Section 3C1.2, which addresses these risks without necessitating an upward departure. Furthermore, Torres-Lopez's subsequent flight on foot did not present any extraordinary danger to the aliens or the public, as it reflected a common risk associated with high-speed chases covered by Section 3C1.2. Overall, the factors cited do not indicate that Torres-Lopez's flight from authority was extraordinary, and allowing upward departure based on these grounds would undermine the intended scope of Section 3C1.2. Consequently, the sentence is vacated, and the case is remanded for resentencing.