911 F.2d 222 | 9th Cir. | 1990
UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus CASTRO-CERVANTES, Defendant-Appellant.
No. 89-50145.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Jan. 10, 1990.
Decided Aug. 9, 1990.
Janice D. Hogan, Asst. Federal Public Defender, San Diego, Cal., for defendant-appellant.
Bruce R. Castetter and Roger W. Haines, Asst. U.S. Attys., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before GOODWIN, FARRIS and NOONAN, Circuit Judges.
NOONAN, Circuit Judge:
Jesus Castro-Cervantes appeals from a sentence imposed upon him by the district court for bank robbery. We remand.
FACTS
On September 21, 1988 Castro-Cervantes was indicted on seven counts of unarmed bank robbery in violation of 18 U.S.C. Sec. 2113(a). On November 21, 1988 he pleaded guilty to counts 1 and 2, pursuant to a plea agreement whereby the government dropped the remaining five counts and he agreed to accept responsibility for two uncharged bank robberies for which the government agreed not to indict him.
According to the presentence report of the probation officer, Castro-Cervantes admitted the seven robberies of banks in August and September 1988 charged in the indictment, plus two earlier robberies on July 25, 1988 and August 8, 1988. He robbed the banks in order to purchase heroin. A man named Oscar helped him write the demand notes and drove him to the banks they had targeted. He split the proceeds with Oscar and another man named Santiago who accompanied them on most of the robberies. In the first robbery that he committed, a dye pack exploded when he tried to take it out of the bank. Oscar told him to remove the dye pack the next time.
The probation officer in the presentence report found the appropriate Guideline range to be 30 and 37 months, but recommended a departure from the Guidelines to 120 months because Castro-Cervantes admitted to nine bank robberies and the Guidelines did not take into account this level of behavior.
At the sentencing hearing in February 1989 the court accepted the probation officer's recommendation to make a departure but rejected the recommendation of 120 months. The court sentenced Castro-Cervantes to a term of 60 months, noting that the number of robberies was "justification for departure." The court added that "the sophistication" shown in Castro-Cervantes's treatment of the dye packs was a second ground for the court departing from the Guidelines. A third reason given by the court for departure was "the fact" that Castro-Cervantes was a member of "an organized ring." The court also candidly expressed its surprise that the Guidelines in themselves did not lead to a higher sentence.
Castro-Cervantes appealed.
ANALYSIS
The Sentencing Guidelines, under the heading "Applicable Guidelines, Sec. 1B1.2" provided: "Similarly, stipulations to additional offenses are treated as if the defendant had been convicted of separate counts charging those offenses." This provision (later amended) was in force when the defendant committed the robberies, when he entered his plea, and when he was sentenced. Consequently, the two uncharged but admitted robberies were to be counted as convictions. The probation officer failed to follow these directions. Castro-Cervantes' sentence under the Guidelines was to be calculated on the basis of the two charged robberies that were pleaded to and the two uncharged robberies that were stipulated to as part of the plea agreement. These four robberies will hereinafter be referred to as the counts of conviction.
The "base offense level" for robbery in effect in the relevant period was 18. United States Sentencing Commission, Guidelines Manual, Sec. 2B3.1 (1988 Revised Edition). In applying this guideline, a loss from a financial institution counts "as at least $5,000" and, as a result, the base offense level is increased by one level. Id. Hence, the offense level was 19 for each of the four robberies since each involved robbery from a bank.
Where there are multiple counts of conviction, the court is to use the procedures in Part D of Chapter Three to determine the "combined offense level" for all the counts of conviction taken together. U.S.S.G. Sec. 3D1.1. Under this part, independent instances of robbery are not to be grouped together nor are the amounts of money involved to be added. See U.S.S.G. Sec. 3D1.2 and comment (n. 6). Rather, with some stretching of the English language, each separate robbery is called a "Group" and treated as a "Group." U.S.S.G. Sec. 3D1.5, Illustration (n. 1).
To determine "the combined offense level," the "Group" with the highest offense level counts as "One Unit." Each "Group" that is "equally serious" counts as an additional unit. U.S.S.G. Sec. 3D1.4. Here each robbery is equally serious, so there are four "Groups" equal to four "Units." Four "Units" adds 4 levels to the offense level. Id. Hence Castro-Cervantes' combined offense level was 23.
As Castro-Cervantes accepted responsibility, 2 points must be deducted. U.S.S.G. Sec. 3E1.1. Under the Guidelines, therefore, Castro-Cervantes' total offense level was 21. An offense level of 21 for a defendant with no criminal record leads to a sentence between 37 and 46 months. U.S.S.G. Chapter 5 Part A ("Sentencing Table").
The court was then permitted "without limitation" to take into account information about Castro-Cervantes which had not been taken into account by the Guidelines. U.S.S.G. Sec. 1B1.4. The Guidelines do not take into account the sophistication of the robber and, therefore, this factor is a proper ground for the sentencing court to take into consideration.
But the Guidelines implicitly take into account participation by a robber as a member of a ring. This implication arises because there is an increase in the offense level if the defendant was a leader, U.S.S.G. Sec. 3B1.1, and there is a decrease in the offense level if the defendant was a minor participant. Id. Sec. 3B1.2. It may be assumed that the standard penalty is provided for the member of the ring who is neither a leader nor a minor player. Hence it was improper to increase the sentence because Castro-Cervantes was a member of an organized group.
The court, following the lead of the probation officer, also justified its departure by the number of the robberies. Four of the robberies had already been taken into account by the Guidelines. To count them was to count twice. They should not have been considered. On the other hand, the five robberies charged in the indictment and dismissed had not entered into the calculation according to the Guidelines. The court was free to consider these robberies. U.S.S.G. Sec. 1B1.4; see also Breyer, The Federal Sentencing Guidelines and the Key Compromises Upon Which They Rest, 17 Hofstra L.Rev. 1, 30-31 (1988) (the effect of this rule on plea-bargaining has been left for further study by the United States Sentencing Commission.) If the court had expressly relied on these robberies when it spoke of "the number of robberies," its explanation would have been faultless. Under prevailing precedent, if a court gives good reasons and bad reasons for departing from the guidelines, the sentence must be reversed. United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989).
Finally, Castro-Cervantes objects to the court's imposition of two special $50 assessments. The district court stayed this imposition pending a decision of the United States Supreme Court in United States v. Munoz-Flores, 863 F.2d 654 (9th Cir.1988), wherein this court held such assessments unconstitutional. The Supreme Court's opinion in United States v. Munoz-Flores, --- U.S. ----, 110 S. Ct. 1964, 109 L. Ed. 2d 384 (1990), reverses our decision in Munoz-Flores. Accordingly, the assessments in the present case were proper.
Because the district court's reliance on improper factors in departing upward requires us to vacate the sentence and remand for resentencing, it is unnecessary to address Castor-Cervantes's remaining contentions.
REMANDED for resentencing.