UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel SEGURA-DEL REAL, Defendant-Appellant, 83 F.3d 275

UNITED STATES of America, Plaintiff-Appellee, v. Jose Manuel SEGURA-DEL REAL, Defendant-Appellant

83 F.3d 275

9th Cir.

1996

Check Treatment

*1 wаs release must show sel owner by the comprehended fully “fairly made advantage” was seaman,” unfair that “no 63 S.Ct. Garrett, at 317 U.S.

taken. pre- circumstances 251-52, In the that the district

sented, say Arctic it determined ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍erred that burden. meet did not

Orion

AFFIRMED. America, STATES

UNITED

Plaintiff-Appellee, REAL, Manuel SEGURA-DEL

Jose

Defendant-Appellant.

No. 95-10299. Appeals, Court

United States

Ninth Circuit. 12, 1996. Feb.

Argued and Submitted April

Decided

tencing may depart court upward from crimi- nal upon VI based a defen- repetition dant’s of a series of offenses which are the same or similar to the defendant’s conviction; crimе of and that the sup- ports the reasonableness of the extent of the departure.: district court’s

FACTS Guidelines, the Sentencing Under Segura- Del Real had an offense level of 10 and a category of VI. The district court found that prior he had 17 convictions up which added to 26 criminal points. He had several for immigration convictions violations, including previous one conviction reentry. for illegal At hearing the first to Sеgura- determine sentence, Del Real’s the district court stated McNamara, Mary Assistant Federal Public it was inclined depart upward and sen- Defender, Francisco, California, San for the Segura-Del tence Real statutory to the maxi- defendant-appellant. years. mum of 5 The court commented: Olney, Susan E. Assistant United States [Segura-Del handling Real’s] or his treat- Attorney, Francisco, California, San ment of his in reentry status intо the Unit- plaintiff-appellee. ed States is Iwhat would call a seofflaw. just goes

He out again and in any without appreciation for what he doing by way violating United States laws. IAnd don’t why see the citizens of this district or law enforcement this district should be made put up person with a with prior REINHARDT, Before: THOMPSON convictions. O’SCANNLAIN, Judges. Circuit postponed sentencing Seg- so that THOMPSON, DAVID R. Judge. Circuit ura-Del Real would have prepare time to аrguments against imposition Jose Manuel pleaded. Real the maxi- mum guilty five-year to a sentence. illegal one-count indictment for reentry by an deportation alien after subse- At the second sentencing hearing, Segura- quent to conviction violation of 8 U.S.C. Del argued against Real sug- He 1326(b)(1). departed The district court gested, however, that if the district court from the Guidelines and were depart, appropriate sentence Real to 41 months range should be between ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍months, prison. Segura-Del appeals Real this sen- rather than the maximum of five His arguing tence prior record, that his justified counsel this suggested sentence placed him in history category range by arguing if Segura-Del sufficiently was permit category were extended in- depart upward court to catego- from that crementally beyond his 26 crim- ry, and in event the еxtent of the district history points inal place him in theo- court’s was unreasonable. retical category X. This jurisdiction We have under 28 U.S.C. category would have a range sentence of 45- § 1291 and we affirm. We hold a sen- argued He months. that using this meth- fact that a The mere sen- be Segura-Del Real odology, record, howev- long criminal has a defendant range. tenced within itself, not, support er, will commented The district deрarture. United States Segura- magnitude” “sheer *3 Carrillo-Alvarez, (9th Cir.1995); 1078, 1085 his “indicates convictions Real’s Del Carrillo-Alvarez, we at 3 F.3d 322-23. is understated.” history category criminal defen- quality the emphasized that it is the minor nature acknowledged the court quantity which history not the dant’s criminal crimes, but prior is decisive. Id. among those convictions emphasized immigration violations. repeated examining quality of defendant’s the to pursuant upwаrd departed then may court consid- history, court a district Segura- 4A1.3, and Guidelines same or repetition of the er defendant’s the ap- This prison. 41 months upward Del Real may base its and similar peal followed. In United circumstance. departure on this (9th Chavez-Botello, F.2d 279 905 v. States

DISCUSSION Cir.1990) we stated: relapse the same recidivist’s into of Review “The A. Standard lack of his demonstrates criminal behavior question the novo review de We original his gravity of recognition of the authority to a district court whether the culpability for wrong, entails Sentencing Guidelines. depart currently charged, he is with which offense 1078, 1084 F.3d 56 v. States United likelihood that suggests increased and Cir.1995). (9th extent We review Since the repeated.” offense will be deter “to district court’s ” prior and current similarity between ‘unreasonable.’ United it is mine whether computing when is not considered offensеs Lira-Barraza, 747 F.2d 941 v. States category, departure Cir.1991) (en banc), (9th citing 18 U.S.C. permissible. is for this reason 3742(e)(3). De v. States (quoting United Id. at 281 Authority Depart B. (5th Cir. 125 Luna-Trujillo, F.2d 868 omitted)); 1989) (citation United see also from the Departure F,2d 425, 429 Montenegro-Rojo, v. States a defendant’s is warranted Guidelines Merino, 44 (9th Cir.1990); v. United under- significantly history category Cir.1994). (9th 749, 756 F.3d of his criminal represents the defendant likelihood or however, considered, have not We' crimes. Guidelines will commit history which reflects a criminal whether may not (1994). court A § 4A1.3 district repetition of same however, category upward from cate departure from upward warrant the defen case where unusual except in the if an Logically, gory VI. significantly dant’s all, make no differ it permissible whose defendants that of other serious de the district category ence category. in that place them records different But from. parts F.3d v. United States are Defendants categories. other from the 316, 320 they are the because placed Carrillo- defendants. intractable all catego most An very Alvarez, It n. 5. F.3d at a district permissible when ry VI is puts recidivism which of their circumstance long has a a defendant finds that Therefore, category. Id. in this them escalating seriousness conduct of requires category VI depart upward affected have not prior incarcerations conduct be defendant’s to commit crimes. other (9th Cir.1990); than that more serious F.2d Singleton, 917 v. category. Durham, the same United States see also prior Real’s seventeen convic- distriet court to follow in determining the theft, tions included convictions for auto at- departure, extent of its Segura-Del Real can- theft, tempted petty thefts, auto three complain not now the district court erred second-degree burglary. first and His con- employing methodology. such a To hold oth- illegal victions included also three entries erwise would permit be to a defendant during into the United States which he was invite the court complain to err and then assisting illegal aliens to enter this the error suggested. See alien, country, reentry deported as a Frank, United States v. aiding four abetting convictions of the Cir.1994). illegаl entry of other aliens. The district AFFIRMED. *4 appropriately Segura-Del focused on repetitive immigration violations. As REINHARDT, Judge, dissenting: Circuit violations, to these his criminal dem- The holds that an in offender recognition onstrated a total lack of of the listed category —an gravity of such offenses and his offender large committed a number continue to them. commit of offenses and who can expect a severe Segura-Del We conclude Real’s numerous punishment under the may have Guidelines — repetitive immigration violations war- punishment his Guidelines increased even ranted an category from solely because his most recent of- Sentencing VI of the Guidelines.1 fense is similar to some of his earlier ones. The appears to if conclude that Departure C. Extent of Category VI offender’s latest offense is simi- argues Real next lar to one or past offenses, more of his he is upward extent of the district depar court’s likely, more but significantly more unreasonable, ture is because the court failed likely to commit future criminal offenses than provide a statement of justifying reasons VI offenders who have departiere. Hines, See United States v. greater committed a offenses, per- number of We dis haps of a nature, more seriоus but whose agree. offenses are more varied in nature. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍That sentencing At hearing, Segura-Del conclusion makes if little Al- sense. suggested Real if the court though did argument an can be made that upward, appropriate sentence would similarity be some cases may sug- of offenses 45-58 months. provided by The rationale gest greater likelihood of recidivism when Segura-Del Real was that if category persons being VI compared have each com- history category out, were extended relatively crimes, small number defendant with 252 criminal points argument has no force whatsoever in the would be in theoretical criminal cate- generally case of comparable offenders who gory X, corresponding with a range already sentence are recidivists and who already of 45-48 months. The district court repeatedly used relapsed into criminal conduct of suggested methodology, this but types. all reason, For this and because the n Segura-Del Real to 41 prison. months in Guidelines contrary mandate a result Having suggested the methodology to that reached majority, I must dis- Guideline*; 2L2.1, application guage prohibit note upward does not departure for 2, provides pertinent part: "[i]n the case of a repetitive criminal Montenegro- conduct. Cf. repeated prior defendant with instances of de- Rojo, ("|T|his 908 F.2d at 430 n. 7 statement conviction, portation without criminal a sentence explicitly does not departing forbid when the applicable guide- or near the maximum number of very large.”). returns becomes range may line be warranted.” U.S.S.G. 2L2.1 application (1994). Segura-Del note 2 Real ar- hearing, 2. At the mistakenly defense counsel stat- guеs language precludes upward depar- ed that Real had 25 criminal repeated immigration ture for his violations. However, points. Segura-Del Real would be in argument This language is meritless. The ex- theoretical X with 25 or 26 criminal pressly repeated prior addresses instances of de- history points. portation without criminal conviction. The lan- by definition VI “defendants are uphold a decision to colleagues’ my sent offenders,” of all Carril- simply be- intractable punishment increase significant lo-Alvarez, departures upward 3 F.3d at several has committed cause history category are ex- equal than an from that criminal rather Guidelines, which tremely more seri- unusual.1 of diverse but concerning up- instructions provide specific ous offenses. state departures particularly reasoning is majority’s occasion,” may, “on find that a district govern- rule general light troubling History Cat- guideline range for Criminal particular and the departures ing serious- inadequate to reflect the egory VI for departures Cate- governing rule history and the defendant’s criminal ness of rules, a Under gory offenders. VI only in eases depart upward, but in this case be- unwarranted record[s].” “egregious, serious clearly no conduct cause the defendant’s added); (emphasis seе Car- 4A1.3 U.S.S.G. of other offenders than that more rillo-Alvarez, Accordingly, 3 F.3d at clearly no because he is depar- been reluctant sanction we have crime likely to commit another defendant, unless the ture put it in To *5 defendants. Category VI history criminal “among all in that those us, Segu- that precedent binds the terms of serious, so criminal record so category, that extremely unusual case is not the ra’s departure warranted.” egregious, that departure permit- “occasional” warrants Carrillo-Alvarez, 3 F.3d at 320. Category VI egregious of ted for most of mistake simply made the offenders. He serious, so Segura’s record is not so That of violations committing a number Category departure egregious, that a immigration laws. deci- our made clear VI is warranted “an stated previously that haveWe v. Singleton and States United sions § 4A1.3 is under warranted (9th Cir.), 1078, сert. 1085 George, 56 F.3d category signifi Vhen — 351, denied, -, 133 U.S. S.Ct. of under-represents the seriousness cantly (1995). Singleton, we found L.Ed.2d likeli history or the criminal the defendant’s that determination the district court’s will defendant commit hood “just VI was ” v. States crimes.’ United a defendant in the case of barely” warranted (9th Cir.1993)(quoting criminal escalated whose extensive Statement). 4A1.3, Policy Such U.S.S.G. felonies, vio- and included serious “unusual” for the reserved departures are conduct, and firearms violations. lent . have al the Guidelines “[S]ince Id. case. stated that at 413. F.2d We history, a court for criminal ready accounted density Singleton’s it for the not inadequate [w]ere criminal on based depart (ten eigh- his between string of offenses limited cases when history only those on birthday his assault in 1982 and teenth more ser ‘significantly record defendant’s 1988), for it not and were officer in in the other defendants ious’ nature, find it escalating their history category.” United criminal same to the (9th necessary vacate the sentence Singleton, 917 v. the inade- upon that it was based Gayou, 901 F.2d extent Cir.1990); history category. criminal Moreover, quacy of the because of success- of a limited likelihood designed §§ is an indicator 4A1.1 Commission 1. The Accordingly, defendants 4A1.3, Id. ful rehabilitation.” cate- with deal criminal and which cate- criminal catеgories, adequacy of gories and with are, surprisingly, gory, empirical not re- with the extant to be “consistent suc- limited likelihood pat- demonstrate the and assessing correlates recidivism search greatest 4A, likelihood and the cessful rehabilitation U.S.S.G. behavior.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍terns of career Introductory 4A1.3, Policy See U.S.S.G. of recidivism. Commentary. in- The Commission Catego- History (stating that Criminal among Statement past record cluded dеfendant’s the lowest with ry “the first offender I includes correlating of re- with likelihood the factors recidivism”). risk of "[r]epeated behavior cidivism because added). (emphasis Singleton, See United States v. conduct of who had a dense con- Cir.1991)(af- Durham, 941 F.2d escalating centration of offenses to serious ftrming departure where district court behavior, cited felonies violent criminal history, “just barely” defendant’s “extensive his departure, warranted a and if crime, in continued involvement George, the criminal conduct of who had a of those crimes as creased violence evidence completely uninterrupted string felony [the cate defendant’s] convictions over the course of seventeen gory did not reflect his to commit years, sign showed no of rehabilitation or crime”) added). (emphasis law, respect presented an ex- tremely recidivism, high likelihood of did not we found that the district court departure, warrant a Seg- mere fact authority lacked the mainly ura’s record of minor in- VI for a defendant who had nineteen convic- cludes a number of approximately tions over the course of seven- surely thoroughly Segura’s teen The district court warrant one. explained the basis for its It no more George’s, extensive than Geоrge’s string certainly noted that George’s, convictions was like “uninterrupted during periods even of incar- escalated seriousness and violence. ceration, during drug Singleton’s just which he committed barely justi- Because escape offenses.” Id. It further departure, noted George’s record, fied because periods during George that “the was not, Segura’s, which is more serious than did short-lived, custody free from invari- Segura’s and because ques- record is without ably ending felony in convictions on new tion not more serious than that offenses,” that there was no evidence that he other defendants in it is any progress “had made toward rehabilita- crystal-clear to me that the district court *6 tion,” respect that he lacked for the law and authority depart. lacked the Put another presented extremely high an likelihood of way, it powers test one’s rational would recidivism, and that he “received no criminal suggest among that all the in defendants history points prior felony for three convic- VI, Category whom the tions.” Id. recognizes to incorrigible be the most in the system, 277, federal Nonetheless, reversed, Segura ante at finding stands we it un- being out as egregious one with a record George’s clear that so “criminal record [wa]s serious, and so see ‘significantly mоre serious’ than that of 320, departure that Category in a offenders VI.” Id. at warranted —re- 1085-86. gardless of the fact George’s We stated that record of that several convic- of the of- tions, Singleton’s, unlike fenses he committed immigration had not “escalated of- in years; seriousness” over the his most fenses. serious offenses had been committed be- Apparently recognizing Segura’s that crim- subsequent tween 1975 and and his places inal record him well within the normal offenses had not involved violence. 56 F.3d range Category offenders, of VI at 1086. We therefore concluded: attempts escape departure rule that a If the Singleton record the defendant in may imposed not be in such circumstances accelerating offenses in seriousness invoking similarity-of-offense approach to from criminal mischief to serious felonies which I have similarity referred. While “just barely” assaultive behavior may justify some eases an justified departure, it is not at all clear departure higher to a category if the George’s up that to the instant of- defendant is in one of the lower criminal justify fense such a history categories, it cannot rationally justify departure such a when the defendant is in conclude, only Category I can highest on the category. bаsis of these listed In

cases, record, instances, Segura’s a few the dis- we have said that defendants trict acknowledged mainly relapsed who have consisted of on one or more occasions by any minor into stretch of le- the same or a type similar of criminal gal reasoning justify may be said to behavior pose likelihood of Category VI. If recidivism than defendants who have com- conduct. high recidivist of risk unrelated few dissimilar two, majority difference between the The upward depar fenses, have allowed an declares, Segura has is that committed See United for that reason. ture me, immigration offenses. To number Chavez-Botello, Cir. 905 F.2d complete sequitur. non that is obvious 1990) (five offenses); v. Mon fact, justification possible I no whatso- see n. 1 tenegro-Rojo, for an offenses). ever Cir.1990) (two rationale em majority’s holding is in this сase. is applicable, few cases how ployed contrary clearly our unprecedented ever, and those with prior law. being compared are conduct whom his criminal records that with minor individuals depar- are rare cases when While there history cate in the lower criminal place them permissible, VI is ture from is, only in the case of defendants gories Here, are con- not of them. plainly —that one frequently en regularly not or who have who has committed fronted with a defendant Similarity of of conduct. gaged violations, but crimi predictor of a relevant future fense is record has not escalated whose criminal conduct, all, only in of those if at the case nal and, fact, violence, whose recidi already demonstrated not who are Immigra- essentially non-violent. vists, already in the are nоt days, popular not be these tion offenses history category. For listed crimes, more violent compared but to other upheld an reason, previously we have never egregious. they are the most cash on in a Segura’s out majority singles ease Yet the majority; rath by the ground advanced one warrants added as the “unusual” have er, Category VI departures our Segura’s immigration Because punishment. alwаys reserved been do not unquestionably render offenders. of criminal egregious than that of other conduct more history cat- the same criminal defendants in all of the defendants those offenses do not egory and because in criminal conduct over repeatedly engaged (cid:127) greater like- way suggest is no There of a number the course recidivism, dis- respectfully I must lihood of of re- in the likelihood significant difference *7 sent. com- a defendant who cidivism between ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of crimes of various large number

mitted a com- who has

types another defendant of the same large number of crimes Accordingly, in determin- type.

or a similar deserve Category VI defendants

ing which always extraordinary punishment, we have WILLIAMS, Daniel Keith conduct, egregiousness their looked to the Petitioner-Appellant, question of wholly irrelevant they have committed the offenses whether in nature. were similar CALDERON, Warden, Arthur Prison, Quеntin State San that a defendant concludes Respondent-Appellee. seventeen has committed Segura like in na- of which are several No. 96-99009. likely to commit ture, more Appeals, States Court George like crimes than a defendant Circuit. Ninth time, who, virtually period of the same over offenses, a different nineteen has committed April 1996. Argued are more serious number of which 1,May Submitted by Segura. committed than those violent 1,May Decided conclusion, and reaches imposed punishment justifies the added thus court, notwithstanding the fact

by the district pose unquestionably

that both