UNITED STATES of America, Plaintiff-Appellant, v. Octavio DOMINGUEZ-CARMONA, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jorge Hernandez-Villanueva, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Jose Rubio-Loya, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Francisco Romo-Medina, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Ramon Gutierrez-Treviso, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Daniel Medrano-Parra, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Orlando Sandoval-Rascon, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Anastasio Corral-Gutierrez, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Gabriel Durazo-Martinez, Defendant-Appellee. United States of America, Plaintiff-Appellant, v. Hector Ceballos-Adete, Defendant-Appellee.
Nos. 97-2197, 97-2202, 97-2234 and 97-2258 to 97-2264
United States Court of Appeals, Tenth Circuit
Jan. 4, 1999
166 F.3d 1221 (table) | 1999 WL 3192
The suggestion for en banc rehearing has been circulated to the full court, and no judge of the court has requested a vote on the suggestion for rehearing en banc.
The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.
Jason Bowles, Assistant United States Attorney (John J. Kelly, United States Attorney and Alfred J. Perez, Assistant United States Attorney, with him on the briefs), Las Cruces, New Mexico, for Plaintiff-Appellant.
Barbara A. Mandel, Assistant Federal Public Defender (Ann Steinmetz, Federal Public Defender, with her on the brief), Las Cruces, New Mexico, and Charles Harwood, Silver City, New Mexico, for Defendant-Appellee Octavio Dominguez-Carmona.
Robert J. McDowell, Assistant Federal Public Defender, Las Cruces, New Mexico, on the brief, for Defendant-Appellee Jorge Hernandez-Villanueva.
Carmen E. Garza, Las Cruces, New Mexico, on the brief, for Defendants-Appellees, Jose Rubio-Loya, Francisco Romo-Medina,
Before BALDOCK, BRISCOE, and LUCERO, Circuit Judges.
BALDOCK, Circuit Judge.
Under
I.
Defendants are Mexican citizens. In October and November, 1997, individual drug smugglers recruited Defendants to carry backpacks of marijuana across the border from Mexico into the United States. The smugglers instructed Defendants to meet in specified locations with several other persons recruited for the same purpose. Defendants each agreed to carry backpacks across the border and turn over the contents to a United States contact. Defendants carried the marijuana across the border. Border Patrol agents observed Defendants and attempted to apprehend them. Although a number of
Defendants subsequently pled guilty to importing marijuana in violation of
II.
Defendants move to dismiss the government‘s appeals for lack of subject matter jurisdiction. Specifically, Defendants argue that because their sentences are complete and they have been deported to Mexico, the government‘s appeals are moot. Accordingly, we must determine whether we have jurisdiction to proceed to the merits of the appeals.
The mootness doctrine derives from Article III‘s requirement that federal courts decide only actual cases between litigants. See United States Parole Comm‘n v. Geraghty, 445 U.S. 388, 400 (1980). A case becomes moot when events occur which resolve the controversy underlying it. Burke v. Barnes, 479 U.S. 361, 363 (1987). In such a situation, a federal court decision provides no resolution between the parties to the lawsuit and therefore, constitutes a constitutionally impermissible advisory opinion. See e.g., United Public Workers of America v. Mitchell, 330 U.S. 75, 78 (1947).
Situations arise, however, where even though a favorable federal court decision will not resolve a plaintiff‘s primary injury, a collateral injury remains which a federal court decision may remedy. In Sibron v. New York, 392 U.S. 40, 56 (1968), the Supreme Court explained that criminal appeals are moot only where dismissing the case as moot will have no “collateral legal consequences” upon the defendant. Prior to the introduction of the sentencing guidelines, federal courts generally dismissed as moot, appeals attacking sentences which defendants already served. E.g., North Carolina v. Rice, 404 U.S. 244 (1971). These decisions rest on the notion that no collateral consequences attach to an already served sentence. See id. Under the sentencing guidelines, however, the length of an already served sentence may serve to enhance sentences imposed for future crimes. See
Defendants’ contention that the appeals are moot because they have completed the sentences imposed by the district court is incorrect. Pursuant to the sentencing guidelines, Defendants each received two criminal history points as a result of the twelve-month sentences the district court imposed. If, as
Moreover, to the extent Defendants contend that their deportation prevents us from granting effective relief to the government if it prevails on appeal, we reject that argument as well. In United States v. Villamonte-Marquez, 462 U.S. 579 (1983), a jury convicted two foreign nationals of drug smuggling. On appeal, the Second Circuit reversed their convictions based upon a perceived Fourth Amendment violation. The government successfully filed a petition for certiorari with the Supreme Court but did not obtain a stay of the mandate. Accordingly, while the case was pending before the Supreme Court, the defendants were released from custody and deported. The defendants argued that their deportation mooted the matter. The Court concluded that because defendants could be extradited and imprisoned for their crimes or could re-enter this country on their own and be subject to arrest and imprisonment, their deportation did not render the case moot.
If the government is successful in this appeal, it could seek to have Defendants extradited2 or they could re-enter the country on their own. In either situation, Defendants would be subject to arrest and imprisonment for the remainder of their sentences. Accordingly, we reject Defendants’ argument that we cannot grant effective relief if the government prevails in this appeal.
III.
Prior to the advent of the sentencing guidelines, federal district judges enjoyed broad discretion in determining whether and how long an offender should be incarcerated. Mistretta v. United States, 488 U.S. 361, 363 (1989). This discretion led to a public perception that “federal judges [meted] out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances.” Koon v. United States, 518 U.S. 81, 92 (1996) (citations omitted). As a result, Congress created the United States Sentencing Commission (Commission) and charged it with specifying “an appropriate sentencing range for each class of convicted persons” based on various factors related to the offense and the offender. Id. (internal quotations omitted). Consistent with Congress’ mandate, the Commission drafted the Sentencing Guidelines with the idea that courts would “treat each guideline as carving out a ‘heartland‘; a set of typical cases embodying the conduct that each guideline describes.” Id. at 93. The Commission realized, however, that certain unusual circumstances which the Commission did not contemplate when drafting a particular guideline could take a case outside the “heartland” of cases covered by the applicable guidelines. Id. at 92. Accordingly, the Commission gave the district courts discretion to depart downward in atypical cases, where the Guidelines linguistically apply, but where the conduct at issue significantly differs from the norm. Id. at 93.
In determining whether the Commission adequately considered certain factors, a court may “‘consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.‘” Koon, 518 U.S. at 92 (quoting
The government argues that the district court improperly departed downward pursuant to
A.
In granting Defendants’ motions for downward departure pursuant to
In the commentary to
Defendants T, U, V, and W are hired by a supplier to backpack a quantity of marijuana across the border from Mexico into the United States. Defendants T, U, V, and W receive their individual shipments from the supplier at the same time and coordinate their importation efforts by walking across the border together for mutual assistance and protection. Each defendant is accountable for the aggregate quantity of marijuana transported by the four defendants. The four defendants engaged in a jointly undertaken criminal activity, the object of which was the importation of the four backpacks containing marijuana ... and aided and abetted each other‘s actions ... in carrying out the jointly undertaken criminal activity. In contrast, if Defendants T, U, V, and W were hired individually, transported their individual shipments at different times, and otherwise operated independently, each defendant would be accountable only for the quantity of marijuana he personally transported.
B.
During sentencing, the district court indicated that a departure under
C.
The district court also considered Defendants’ apparent lack of sophistication in deciding to depart downward under
We begin by noting that a defendant‘s lack of sophistication may be a proper basis for granting a downward departure. See United States v. Castro-Cervantes, 927 F.2d 1079, 1081 (9th Cir.1990); United States v. Jagmohan, 909 F.2d 61, 65 (2d. Cir.1990); Cf. United States v. Talk, 13 F.3d 369, 371 (10th Cir.1993) (refusing to foreclose possibility that lack of sophistication could be proper basis for downward departure). This does not mean, however, that every defendant lacking sophistication is entitled to a downward departure on that basis. Instead, the lack of sophistication must be such as to remove the case from the “heartland” of cases contemplated by the Commission. For the reasons that follow, we conclude the district court erroneously based its decision to depart downward on Defendants’ lack of sophistication.
Although the guidelines do not explicitly discuss the relevance of a defendant‘s lack of sophistication in sentencing,
Subsection (a) applies to a defendant who plays a minimal role in concerted activity. It is intended to cover defendants who are plainly among the least culpable of those involved in the conduct of a group. Under this provision, the defendant‘s lack of knowledge or understanding of the scope
and structure of the enterprise and of the activities of others is indicative of a role as minimal participant.
It is intended that the downward adjustment for a minimal participant will be used infrequently. It would be appropriate, for example ... where an individual was recruited as a courier for a single smuggling transaction involving a small amount of drugs.
In drafting
IV.
For the foregoing reasons, we DENY Defendants’ motion to dismiss the appeal as moot, REVERSE Defendants’ sentences and REMAND to the district court with instructions that Defendants be sentenced in accordance with this opinion and the applicable sentencing guidelines.
LUCERO, Circuit Judge, concurring.
I concur in the majority holding, but I write separately concerning the issue of mootness. The defendants have served their sentences in full, and the possibility that they will face longer sentences in the future based on their criminal history points is too speculative to save the government‘s sentence challenges from mootness. Yet, I conclude that this controversy is live because the defendants could either be extradited or could voluntarily return to the United States.
I
In order for a controversy to be justiciable, it must be “definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937). If the parties do not have a genuine stake in the outcome of a case, or if the threat of injury is merely hypothetical or conjectural, the case fails to establish a justiciable case or controversy. See City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). A criminal case is not moot if resolution of the disputed issue could have “collateral legal consequences.” Sibron v. New York, 392 U.S. 40, 57 (1968); see Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968).
A
When viewed in the context of the Supreme Court‘s recent decision in Spencer v. Kemna, 523 U.S. 1 (1998), the collateral consequence of additional criminal history points the government invokes to overcome mootness is too speculative to overcome such a finding. The government argues that if a defendant should return to the United States and be arrested for a new crime, he could receive a longer sentence based on the additional criminal history points he would receive if the government prevails in this appeal.
Relying in part on constitutional separation of powers concerns, the Supreme Court in Spencer, 523 U.S. at 12-16, declined to presume the existence of collateral consequences in the context of parole revocation. In the process, the Court cast into doubt the practice of using highly
In Lane v. Williams, 455 U.S. 624 (1982), cited with approval in Spencer, see 523 U.S. at 12-14, the Court held that habeas petitioners’ challenges to the constitutionality of mandatory parole terms that had been accepted pursuant to plea bargains were moot because petitioners—who had both been re-jailed for parole violations—had finished serving their sentences and parole terms. See 455 U.S. at 624-25. The Lane Court overturned the Seventh Circuit‘s conclusion that future consequences of such parole revocation decisions constitute collateral consequences that could overcome mootness. See id. at 631-33. The Court rejected the argument that a parole revocation could harm future employability, noting that a prospective employer would have discretion whether to give weight to a prior parole revocation. See id. at 632-33. The Court also rejected the argument that a parole revocation could affect the duration of a future sentence or parole eligibility, finding that such consequences would be contingent on a petitioner‘s rearrest and reconviction and on the discretion of the judge or parole authority. See id. at 632-33 n. 13.
The possibility that the defendants before us today will be subject to longer future sentences—a possibility the government invokes to support a finding of a live controversy—is no less speculative than the consequences at issue in Spencer and Lane. It presumes that defendants will re-enter the country and commit another crime. Not only is this highly speculative, it is contrary to the presumption that an individual will act in accordance with the law. See Spencer, 523 U.S. at 15 (quoting O‘Shea v. Littleton, 414 U.S. 488, 497 (1974)); Royal College Shop v. Northern Ins. Co., 895 F.2d 670, 682 (10th Cir.1990). Although the majority cites numerous cases to support the proposition that the possibility of a longer future sentence, based on an increase in criminal history points, keeps a case alive, see United States v. Cottman, 142 F.3d at 165; United States v. Kassar, 47 F.3d at 565; United States v. Chavez-Palacios, 30 F.3d at 1293; United States v. Fadayini, 28 F.3d at 1241; United States v. Dickey, 924 F.2d at 838, for the reasons stated, I believe that the Court‘s decision in Spencer trumps these cases.
B
In United States v. Villamonte-Marquez, 462 U.S. 579, 581 n. 2 (1983), however, the Supreme Court specifically held that a government appeal was not moot where defendants who had been deported to Mexico could either be extradited to or could somehow voluntarily re-enter the United States to serve their sentences. While there appears to be some tension between Spencer and Villamonte-Marquez, I nevertheless conclude, on the basis of Villamonte-Marquez, that the possi-
II
I join in the remainder of the majority opinion. I add only that I do not fault the trial courts for the compassion and mercy that underlie their actions. That sentiment notwithstanding, the Sentencing Guidelines preclude the relief fashioned here. To the extent that the Guidelines are inadequate to credit such concern, corrective action must come from the Sentencing Commission, not from this court.