On March 23, 1990, appellant José Enrique Reyes and co-defendant Pedro Julio Belilla were arrested as they tried to smuggle approximately seventy illegal aliens into United States territory from the Dominican Republic aboard a thirty-foot boat. A federal grand jury for the district of Puerto Rico returned an indictment on March 29, 1990, charging them with five counts of violаting Section 1324(a)(1)(A) of Title 8 of the United States Code. On June 15, 1990, Reyes and Belilla both entered into plea agreements with the government, whereby they plead guilty to the first count of each of their indictments. As a result thereof, counts two through five were dismissed.
The district court referred the cases to the Probation Office for the preparation of a presentence investigation report. The probation officer recommended an adjustment to the base offense level for the defendants’ leadership of their illegal enterprise. The officer based his recommendation on the proffer of evidence tendered by the government at the change of plea heаring, wherein it was submitted that had the case gone to trial a number of other passengers would have testified that Reyes and Belilla had copiloted the boat which had brought them to Puerto Rico. Moreover, the probation officer advised the court not to grant reductions for acceptance of responsibility, since the defendants’ guilty pleas, conditioned upon unrelenting denials of their primary role in the commission of the offense, did not clearly demonstrate an affirmative acceptance of personal responsibility for their criminal conduct. Finally, the report urged the court to consider an upward departure, given that Reyes and Belilla’s criminal conduct involved the reckless endangerment of human lives. The defendants filed written objections to the presentence investigation report and then argued their disagreement orally at the sentencing hearing on October 26, 1990.
At the conclusion of the sentencing hearing, the court adopted all of the recommendations outlined by the probаtion officer in the presentence investigation report. Pursuant to § 2Ll.l(a) of the Sentencing Guidelines, the sentencing court determined that a violation of 8 U.S.C. § 1324(a)(1)(A) carried with it a base offense level of nine. See United States Sentencing Commission, Guideline Manual, § 2Ll.l(a) (Nov.1990) [hereinafter U.S.S. G.]. Citing defendants’ leading role in the commission of the offense, the court made a two-level upward adjustment, arriving at a base offense level of eleven. See U.S. S.G. § 3Bl.l(c). As suggested by the probation officer, defendants’ halfhearted guilty pleas were not considered as demonstrating an acceptance of responsibility sufficient to warrant a downward adjustment and, thus, the base offense level was left undisturbed. However, the court then de *50 parted upward on the ground that Reyes and Belilla had placed the lives of a considerable number of people at great risk, and sentenced defendants to thirty-six months imprisonment. (The sentencing range for a base offense level of eleven is eight to fourteen months, while thirty-six months is near the top of level nineteen and close to the midpoint of level twenty). Only Rеyes has appealed, assigning error to all three steps in the reasoning of the sentencing court.
I
The standard of review for the sentencing court’s upward adjustment for appellant’s leading role in the offense and its denial of a downward adjustment for acceptance of responsibility is clear error.
United States v. Iguaran-Palmar,
Appellant first claims that the sentencing court portrayed him as a leading participant of the illegal alien smuggling ring on the basis of insufficient evidence. A review of the record, however, reveals that these are hollow words. The government’s proffer of evidence established that a number of passengers stated that Reyes and Belilla co-piloted the two-day trip from the Dominican Republic to the West Coast of Puerto Rico; that throughout the trip both appellant and his co-defendant were the persons in control of the boat; that during the trip they gave specific instructions as to wherе and how to sit when the seas got rough; and that the appellant and his co-defendant additionally operated the engines, steered and bailed the vessel. We have previously found less enthusiastic assistance to be demonstrative of at least “an active role” in the commission of the crime.
See United States v. Trinidad de la Rosa,
We pause momentarily to express our concern over a practice which has become increasingly common in cases involving illegal alien smuggling from the Dominican Republic to Puerto Rico and which must decisively come to an end. Recent cases have seen the government label as “captains” (and consequently push for upward departures at sentencing based on a defendant’s leading role in the offense) individuals whose sole participation in the illegal alien smuggling venture has been occasionally tо steer the vessel in which the illegal aliens were brought. It should not require comment, however, that not everyone who lays his or her hand on the helm of a vessel can justly be considered the ship’s “captain” for purposes of determining his or her role in the commission of the offense. Similarly, the concept of co-captain, as used by the gоvernment in the instant case, is extraneous to common sense, as it is also beyond peradventure that there can be but one captain to a ship. 1 While this case falls just outside of this detrimental practice, it is sufficiently akin to its troublesome trend to warrant these cautionary remarks. We instruct sentencing courts that, henceforth, whenever thе government attempts to ascribe principal status to a defendant in an illegal alien smuggling case, special care must be taken to ensure that the defendant’s role was in fact as the government has alleged.
Appellant’s second claim is that the sentencing court erred in denying him two-level downward adjustment for acceptance of responsibility. The court's refusal was presumably based on the fact that in objecting to the presentence investigation report Reyes denied being the captain of the *51 vessel, a fact he allegedly stipulated to at the time he signed the government’s version of the events. Emphasizing, as we have above, that to captain аnd to co-pilot a ship are two entirely different things, Reyes argues that there is no inconsistency between his original stipulation to the fact that he co-piloted the boat and his subsequent denial of the government’s contention that he was the captain of the ship in the true sense of the word. This being the case, he argues, his plea of guilty should hаve resulted in a two-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
The simple answer to appellant’s argument is this. The Sentencing Guidelines authorize trial courts to grant a two-level reduction to a defendant’s base offense level only “[i]f the defendant clearly demonstrates a recognition and affirmative аcceptance of personal responsibility for his criminal conduct ...” U.S.S.G. § 3El.l(a). A defendant’s guilty plea is only one factor, among many, to be considered by the sentencing court in making this determination. Uni
ted States v. Bradley,
II
As a third assignment of error, appellant objects to the sentencing court’s decision to depart from the sentencing guidelines. The propriety of the sentencing court’s departure from the applicable guideline range is, of course, reviewed in accordance with the tripartite test established in
United States v. Díaz-Villafañe,
The sentencing court decided to depart upward citing three primary circumstances: (1) the nature of the offense, (2) the potential tragic consequences of the same, and (3) the reckless endangerment of human lives. While we are hard pressed to sеe how “the nature of the offense” can ever be regarded as a circumstance not considered by the Sentencing Commission, we believe circumstances two and three (which, in other words, collectively refer to the dangerous circumstances created by the placing of a large number of human beings aboard an unsafe vessеl to cross a treacherous body of water) are sufficient to justify a departure. The recently amended Application Note 8 to § 2L1.1 states that “[t]he Commission has not considered offenses involving large numbers of aliens or *52 dangerous or inhumane treatment. An upward departure should be considered in those circumstances.” U.S.S.G. § 2L1.1, comment, (n. 8) (emрhasis supplied). This directive thus effectively forecloses further inquiry into step one of the Díaz-Villafañe analysis. In fact, although the smuggling of aliens aboard open boats from the Dominican Republic to Puerto Rico does not necessarily implicate inhumane treatment, 2 such offenses ordinarily involve a large number of aliens aboard unseaworthy vessеls and under dangerous conditions, circumstances which might justify a departure in almost every case.
The second step of the
Díaz-Villafañe
analysis requires us to ascertain whether the court’s determinations enjoy adequate record support.
United States v. Ocasio,
With regard to appellant’s first contention, we observe that the sentencing court did have sufficient evidence from which it сould have reasonably concluded that the vessel was unseaworthy, to wit, that unlike other vessels routinely intercepted by the marine authorities, appellant’s boat had to be dismantled because immigration officials concluded that it was unsafe. That such an unsafe vessel completed a fifty-mile ocean voyage, in our view, only beаrs witness to the good fortune appellant encountered during the course of his trip.
In what pertains to appellant’s second claim, we note that a reasonable factfinder need not be presented with specific factual accounts of what transpired during the voyage to be able to conclude that the trip was cоnducted under dangerous circumstances. The court was presented with the fact that seventy persons were crowded into an unsafe, thirty-foot, wooden boat for a fifty-mile trip across a treacherous, shark-infested body of water which took two full days. These circumstances, amply supported by the record, provide an adequatе foundation for the sentencing court’s finding that during the course of his criminal endeavor appellant recklessly endangered the lives of other human beings.
Finally, under the third step, the degree of the departure must be measured by a standard of reasonableness.
United States v. Scott,
Affirmed.
Notes
. Our point is that what counts is not some meaningless label but factual evidence proving that an individual performed a true leadership role, in other words, facts establishing that by himself or with others, the defendant played a leading part in operating or navigating the boat, or in otherwise managing and directing the illegal alien venture itself.
.
See Trinidad de la Rosa,
. At this juncture in his argument, appellant mounts an attack against his sentence on equal protection grounds, which we must briefly address. Appellant argues that, just as the usual means by which illegal aliens are brought into the United States from countries with which the United States shares a border is some type of ground motor vehicle, the usual means by which illegal aliens are brought into the United States from the Dominican Republic is by way of open boats. If the departure based on the means employed to smuggle aliens is allowed to stand, a disparity in sentencing will occur, since smugglers of illegаl aliens operating from Mexico and Canada would get lighter sentences than those operating from islands in the Caribbean. Appellant argues such a disparity could amount to a violation of the equal protection clause since defendants tried in Puerto Rico would be subject to harsher penalties than those tried in other states for similar violations of law.
Clever though it may be, appellant’s argument does not withstand scrutiny. The departure in the instant case was not imposed on the basis of the "means” appellant utilized to smuggle aliens, but as a result of the dangerous conditions surrounding the operation. Had a safer means been employed, we would have undoubtedly reаched a different result. Cases upholding departures on the basis of dangerous and inhumane treatment in the smuggling of aliens across land borders serve to prove our point.
.
See Díaz-Villafañe,