United States v. Carrion-Cruz ( 1996 )

USCA1 Opinion

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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          No. 96-1026





                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                               ERIC JOEL CARRION-CRUZ,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jose Antonio Fuste, U.S. District Judge]
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                                        Before



                          Selya and Boudin, Circuit Judges,
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                           and McAuliffe,* District Judge.
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               Benicio Sanchez-Rivera, Federal Public Defender, and Juan E.
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          Alvarez,  Assistant  Federal  Public   Defender,  on  brief   for
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          appellant.



               Guillermo  Gil, United  States Attorney,  Jose   A.  Quiles-
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          Espinosa,  Senior  Litigation  Counsel, and  Miguel  A.  Pereira,
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          Assistant United States Attorney, on brief for the United States.



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                                    August 7, 1996



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                    Per Curiam.  Defendant-appellant Eric Joel Carrion-Cruz
Per Curiam.
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          pled  guilty to  violating  the carjacking  statute, 18  U.S.C.



          2119(3).  At the disposition hearing, the district court departed



          upward from the guideline sentencing  range to impose a  sentence



          of life  imprisonment.1  Carrion-Cruz assigns error to the upward



          departure.



                    We  have  carefully  examined  the  transcript  of  the



          disposition hearing,  the presentence  investigation report,  and



          the  briefs.  Since we are persuaded that the assignment of error



          lacks merit, we  summarily affirm.  See 1st Cir. R. 27.1.  We add
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          only four brief comments.



                    First:   U.S.S.G.   5K2.0 allows  sentencing courts  to
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          depart from the guideline sentencing range in a given case if the



          court finds aggravating  or mitigating circumstances  that render



          the case atypical  and take it out  of the "heartland"  for which



          the  applicable guideline  was designed.    See United  States v.
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          Quinones,  26 F.3d  213, 216  (1st Cir.  1994); United  States v.
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          Rivera, 994 F.2d 942, 946 (1st Cir. 1993); United States v. Diaz-
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          Villafane, 874  F.2d 43,  49 (1st Cir.  1989), cert.  denied, 493
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          U.S.  862 (1989).   Here,  the  multiple killings  for which  the



          defendant was responsible      murdering four individuals (two of



          whom  were good samaritans  who had stopped  to offer assistance)



          within an  abbreviated time frame      transport  the defendant's




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               1In effect, the  court raised the defendant's  offense level

          by three levels (from 40 to 43).  Even for a first-time offender,

          Offense Level 43  commands a sentence of life  imprisonment.  See
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          U.S.S.G. Ch. 5, Pt. A (Sentencing Table).



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          activities well  outside the mine-run  of carjacking cases.   See
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          U.S.S.G.  5K2.1 (encouraging courts  to consider upward departure



          from the otherwise  applicable guideline sentencing range  if the



          relevant offense conduct results in multiple deaths).



                    Second:   The defendant points to his youth and limited
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          intellect as mitigating  factors.  But his counsel  made much the



          same  argument  below,   and  the  district   judge  specifically



          commented upon  these factors in  passing sentence and  took full



          account of them.   Given the sentencing court's  special coign of



          vantage,  see Diaz-Villafane,  874 F.2d  at 49,  we cannot  brush
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          aside  that  court's  considered judgment  on  so  interstitial a



          matter.



                    Third:  The defendant's challenge to the reasonableness
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          of the upward departure is  unavailing.  Offense Level 40 permits



          sentences of up to 365 months for first offenders.  The magnitude



          of the ensuing  departure     to  a life sentence (Offense  Level



          43)     is reasonable, considering the sordid facts of the  case.



          See, e.g., Quinones, 26 F.3d  at 218 (explaining that  "unusually
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          brutal, cruel, and degrading treatment" of victims "is emblematic



          of the  very sort  of sociopathic behavior"  that will  sustain a



          substantial  upward departure).   The  departure  here meets  any



          conceivable  test  of   reasonableness.    See,  id.   at  219-20
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          (upholding 60% increase as  reasonable); Diaz-Villafane, 874 F.2d
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          at 52  (upholding departure  that more  than doubled  defendant's



          sentence as reasonable).



                    Fourth:  Relatedly, the Supreme Court's  recent opinion
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          in Koon  v. United States, 64 U.S.L.W. 4512 (U.S. June 13, 1996),
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          makes it  clear that we  must respect a district  court's special



          competence in sentencing  matters, see id. at 4516-17, and uphold
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          a departure sentence unless the court has  abused its discretion,



          see id.  at 4517.   In light of  the stark  facts of this  brutal
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          crime, a convincing  case of discretion  abused simply cannot  be



          mustered.



                    We  need  go  no  further.2    The  Supreme  Court  has



          instructed us that "it  is not the role of an  appellate court to



          substitute its  judgment for that  of the sentencing court  as to



          the  appropriateness  of  a particular  sentence."    Williams v.
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          United States, 503  U.S. 193, 205  (1992) (citation and  internal
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          quotation marks omitted).  In  essence, the defendant invites  us



          to contravene that precept.  On these facts, we have no reason to



          take so precipitous a step.







          Affirmed.
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               2Because  the upward  departure is  fully  justified by  the

          incidence of multiple deaths, we  need not address the sentencing

          court's alternative justifications for the sentence.



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