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In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-2708 & 01-2937

United States of America,

Plaintiff-Appellee,
Cross-Appellant,

v.

Carlos Gallo-Vasquez,

Defendant-Appellant,
Cross-Appellee.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 644--Ruben Castillo, Judge.

Argued March 1, 2002--Decided March 27, 2002



  Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.

  Flaum, Chief Judge.  The appellant,
Carlos Gallo-Vasquez, was convicted of
offenses surrounding his participation in
drug trafficking. The district court
sentenced Gallo-Vasquez to prison for 135
months, with five years of supervised
release. The sentence that the district
court imposed included an enhancement for
the alleged "supervisory role" that
Gallo-Vasquez played in the execution of
a drug transaction and a downward
departure based upon the fact that Gallo-
Vasquez was a deportable alien. Gallo-
Vasquez has filed the instant appeal
contesting the propriety of the district
court's enhancement of his sentence and
the government has filed a cross-appeal
challenging the district court's downward
departure. For the reasons stated below,
we affirm in part and reverse and remand
in part the decisions of the district
court.

I.  BACKGROUND
  In early August of 2000, United States
customs officials at the border in Texas
detected a vehicle attempting to enter
the country carrying narcotics. That
vehicle, a large truck, contained over
four thousand sacks of charcoal. However,
the sacks also contained significant
amounts of marijuana--the total amount of
which exceeded five thousand pounds.
After an investigation, customs officials
discerned that the truck was headed for
Chicago. After learning the truck's
destination, law enforcement officials
attempted to set up a controlled delivery
of the truck for August 8, 2000. On
August 9, an undercover Chicago police
officer drove the truck to the delivery
address that was discovered during the
course of the investigation. Upon arrival
at this address, the undercover officer
found that there was no one present to
receive the shipment. Several phone calls
were made and eventually the undercover
officer was told to bring the truck to a
warehouse located on Chicago's south
side.

  As the undercover officer approached the
warehouse where the delivery was to be
made, a female approached the truck and
told him to park it in the rear. The
undercover officer pulled his truck to
the rear of the warehouse, where he was
directed to pull in front of a loading
dock. The officer then watched as six or
seven Hispanic men began to unload the
truck. The undercover officer was able to
identify Gallo-Vasquez as he stood with
another man observing the unloading of
the sacks of charcoal. After several min
utes had elapsed, the officer asked one
of the men who had unloaded the truck to
sign the bill of lading. Rather than sign
the bill of lading himself, this man
spoke to Gallo-Vasquez and another man.
Gallo-Vasquez then signed the bill of
lading with the name "Eduardo Flores."
After receiving the signed document, the
undercover officer entered his truck and
drove from the loading dock.

  Shortly after the undercover officer
departed, law enforcement agents entered
the warehouse and arrested eight
individuals, including Gallo-Vasquez.
From the eight individuals arrested, the
government indicted only two: Gallo-
Vasquez and Asael Sanchez. Sanchez
ultimately pleaded guilty and agreed to
testify at Gallo-Vasquez's trial. At
Gallo-Vasquez's trial, Sanchez told the
story of his involvement in the August 9
delivery. According to Sanchez, on August
9, he received $500 to help unload the
truck driven by the undercover officer.
Sanchez further testified that once the
charcoal bags were unloaded, Gallo-
Vasquez told him (and the others who had
removed the cargo from the truck) to open
the bags and separate the contents. While
separating the smaller bags, Sanchez
testified that he and others saw a
package which they believed to contain
drugs. Sanchez stated that he and the
other individuals were then told that
they would be given more money if they
continued to work. Around this time, law
enforcement officials entered the
warehouse. When the officers entered the
warehouse, the men unloading the truck
attempted to flee.

  After his trial, the jury convicted
Gallo-Vasquez of possession of more than
1,000 kilograms of marijuana with intent
to distribute. On June 26, 2001, the
district court conducted a sentencing
hearing at which it asked Gallo-Vasquez
if he had reviewed the pre-sentence
report ("PSR") that had been prepared in
his case. Through his counsel, Gallo-
Vasquez made an objection to certain
facts contained in the PSR. Gallo-Vasquez
also objected to certain
"interpretations" that it contained.
Sentencing Tr. at 4. Specifically, Gallo-
Vasquez objected to the recommendation
that his sentence be adjusted for his
supervisory "role in the offense" under
section 3B1.1 of the Sentencing
Guidelines./1 Id. In addition, Gallo-
Vasquez requested a downward departure in
his sentence because of his status as a
deportable alien.

  In imposing a sentence, the district
court enhanced Gallo-Vasquez's sentence
by three levels because it concluded that
he undertook a supervisory role in the
delivery of the drugs in question./2
Lastly, the district court granted a
four-level downward departure to Gallo-
Vasquez because it concluded that, as a
deportable alien, "he will have a worse
situation than would other people of U.S.
citizenship convicted of the exact same
thing with the exact same history." Id.
at 14. Ultimately, the district court
sentenced Gallo-Vasquez to 135 months'
imprisonment with a five-year period of
supervised release.

  Gallo-Vasquez filed the instant appeal
claiming that the district court erred in
enhancing his sentence because of his
alleged supervisory role in the offense.
According to Gallo-Vasquez, the district
court did not find that there were five
or more criminally culpable participants
in the underlying criminal activity, as
required by the sentencing guidelines.
The government also cross-appeals,
arguing that the district court committed
legal error and abused its discretion in
allowing for a downward departure in
Gallo-Vasquez's sentence based upon
Gallo-Vasquez's alien status.

II.  DISCUSSION

  We review the district court's findings
of fact at sentencing (in this case with
regard to whether Gallo-Vasquez acted as
a manager or supervisor of others in
criminal conduct) for clear error. See
United States v. Young, 34 F.3d 500, 504
(7th Cir. 1994). This court reviews a
district court's downward departures from
the Sentencing Guidelines for abuse of
discretion. See United States v.
Purchess, 107 F.3d 1261, 1270 (7th Cir.
1997).

A.  Enhancement for Supervisory Role

  Gallo-Vasquez contends that the district
court erred in enhancing his sentence for
acting in a supervisory capacity during
the August 9, 2000 drug transaction. In
particular, Gallo Vasquez claims that the
district court did not adequately find
that there were five other participants
involved in the drug transaction. "The
government must prove by a preponderance
of the evidence that an enhancement is
warranted." United States v. Scott, 245
F.3d 890, 912 (7th Cir. 2001).
Furthermore, for an enhancement made
pursuant to the section 3B.1(b) of the
Sentencing Guidelines, the factual basis
should be made clear on the record. See,
e.g., Untied States v. Tai, 994 F.2d
1204, 1212 (7th Cir. 1993).

  While the district court did not furnish
an exhaustive explanation of its decision
to enhance Gallo-Vasquez's sentence for
his supervisory role over five or more
participants, we find that its findings
are nonetheless adequate and do not
amount to clear error. In the instant
case, there was ample evidence presented
at trial to support the district court's
finding that Gallo-Vasquez acted as a
supervisor of five people engaged in
criminal activity. First, Asael Sanchez
testified that when the bags of charcoal
were unloaded from the targeted truck,
Gallo-Vasquez ordered up to eight
individuals to separate the contents of
the bags. Asael Sanchez further testified
that, upon seeing that the bags contained
marijuana, he and several of the men
unloading the truck stopped working, only
to continue when Gallo-Vasquez promised
the payment of more money. Indeed, when
law enforcement officials raided the
warehouse where the unloading of the
truck was taking place, Sanchez and five
other individuals ran. This permissibly
suggests that these men knew that they
were participating in an illegal
activity. See United States v. Smith, 34
F.3d 514, 521 (7th Cir. 1994) (evidence
of defendant's flight can be probative of
that defendant's consciousness of guilt).
These facts, in addition to other
testimony adduced at trial, support the
district court's finding that at least
five men were involved in criminal
activity and Gallo-Vasquez acted as their
supervisor. See United States v.
McKinney, 98 F.3d 974, 982 (7th Cir.
1996) ("Even where the district court has
failed to make specific findings with
regard to a defendant's role as a leader
or organizer, we have affirmed where the
record adequately supports such a
determination.").

B.  Downward Departure Based Upon Alien
Status

  In its cross-appeal, the government
contends that the district court abused
its discretion in granting a four-level
downward departure on Gallo-Vasquez's
sentence because of his status as a
deportable alien. In making this
argument, the government urges this court
to overturn its decision in United States
v. Farouil, 124 F.3d 838 (7th Cir. 1997),
in which we allowed for a departure based
upon a defendant's status as an alien. We
decline to overturn Farouil. However, we
reverse and remand the district court's
decision on this matter because the
district court failed to articulate any
factors that would justify a downward
departure. Therefore, the district
court's decision amounts to an abuse of
discretion.

  Our decision in Farouil followed the
Supreme Court's opinion in Koon v. United
States, 518 U.S. 81 (1996), which allows
district courts, in deciding to grant
downward departures, to consider unusual
or exceptional circumstances not
contemplated in the Sentencing
Guidelines. In Farouil, we reversed a
sentence imposed by the district court
when the district court "appear[ed] to
have been under the impression that it
lacked discretion to depart on the basis
of status as a deportable alien . . . ."
Farouil, 124 F.3d at 847. According to
our reasoning, reversal was warranted
because the district court, in refusing
to consider a characteristic of the
defendant (namely, alienage), violated
the dictates of Koon. Id. However,
Farouil contains no language that
mandates sentencing courts to enter
downward departures every time a
defendant is a deportable alien. Indeed,
in cases subsequent to Farouil, we have
found that, in considering a downward
departure, a "defendant's status as a
deportable alien is relevant only insofar
as it may lead to conditions of
confinement, or other incidents of
punishment, that are substantially more
onerous than the framers of the
guidelines contemplated in fixing the
punishment range for the defendant's
offense." United States v. Guzman, 236
F.3d 830, 834 (7th Cir. 2001) (emphasis
in original).

  In the instant case, the district court
made no finding that Gallo-Vasquez would
suffer conditions more onerous than those
contemplated by the Sentencing Guidelines
because of his status as an alien.
Indeed, due to the nature of Gallo-
Vasquez's offense and the probability of
his flight, it is unlikely that he would
be entitled even to participate in the
types of discretionary prison
alternatives (e.g., a stay in halfway
house) often available to citizen-
defendants./3 Instead, in granting the
downward departure, the district court
categorically stated, "I do know that
because of [Gallo-Vasquez's] citizenship
status, he will have a worse situation
than would other persons of U.S.
citizenship convicted of the exact same
thing with the exact same criminal
history . . . ." Sent. Tr. at 14. The
district court did not expound on how the
defendant's conditions of confinement
would differ as a result of his alienage
and whether those differences would have
made the defendant's sentence more
onerous than was contemplated by the
framers of the Sentencing Guidelines.

  Accordingly, we vacate the district
court's departure on Gallo-Vasquez's
sentence and remand this case with
instructions that the district court
examine the actual effects that Gallo-
Vasquez's alien status will have upon his
sentence and whether those effects will
move Gallo-Vasquez's sentence beyond the
"heartland" of cases contemplated by the
framers of the Sentencing Guidelines when
they crafted proposed sentences for
defendants convicted of similar crimes.

III.  CONCLUSION

  For the foregoing reasons, we Affirm in
part and Reverse and Remand in part the
decisions of the district court.

FOOTNOTES

/1 In relevant part, that section provides for the
enhancement of a defendant's sentence "[i]f the
defendant was a manager or supervisor . . . and
the criminal activity involved five or more
participants . . . ." U.S.S.G. sec. 3B1.1(b).

/2 In addition, the district court also enhanced
Gallo-Vasquez's sentence for obstruction of
justice, a result of Gallo-Vasquez's incredible
testimony on his own behalf.

/3 We also note that an alien's ineligibility to
participate in halfway house or other transition-
ary programs need not constitute an automatic
basis for a downward departure, as under such a
regime, every illegal alien would qualify for a
downward departure. Instead, district courts
should thoroughly examine whether there are
"exceptional circumstances" (which can include a
host of factors) warranting leniency. See Guzman,
236 F.3d at 834.

.


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