United States District Court, D. New Mexico
April 20, 2005.
UNITED STATES OF AMERICA, Plaintiff,
PEDRO VARGAS-SERRANO, Defendant.
The opinion of the court was delivered by: ROBERT C. BRACK, District Judge
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the issue of whether
the Government must prove that Defendant's ("Vargas-Serrano")
prior alien smuggling conviction was "for profit" in order to
implement a 16 level enhancement under § 2L1.2(b)(1)(A) of the
2002 Sentencing Guidelines. Vargas-Serrano objects to the 16
level enhancement in light of the Supreme Court's holding in
Shepard v. United States. For the following reasons, I will
OVERRULE Vargas-Serrano's objection to the PSR and find that
the 16 level enhancement under § 2L1.2(b)(1)(A) is appropriate.
I. Factual background.
On September 7, 2003, Vargas-Serrano pleaded guilty to an
information charging him with Reentry of an Aggravated Felon in
violation of 8 U.S.C. § 1326(b)(2). Vargas-Serrano had previously
been convicted in 2000 of Transporting Illegal Aliens in the
District of New Mexico. At sentencing for this prior conviction,
Vargas-Serrano never objected to Judge Hanson's adoption of the
presentence report ("PSR") factual findings. Judge Hanson noted
that "the defendant participated in a scheme to smuggle aliens
into the United States." The PSR stated that Vargas-Serrano and
another individual "were paid $400.00 each from an unknown
individual in Ciudad Juarez, to take the illegal aliens to Hatch,
New Mexico where they would turn them over to another smuggler
for the remainder of the journey." Vargas-Serrano provided the
Probation Office with his own statement in exchange for a 2-level
reduction for acceptance of responsibility, which read as
follows: "I agreed to take twelve undocumented aliens to Hatch,
New Mexico. I was to be given $400.00. . . ."
In sentencing Vargas-Serrano to two years in prison on his
prior conviction for alien smuggling, the district court computed
his base offense level at 12 under § 2L1.1 of the Guidelines.
U.S.S.G. § 2L1.1 (2002). Section 2L1.1 provides for a 3-level
decrease in the base offense level if the offense "was committed
other than for profit." Id. The district court did not reduce
Vargas-Serrano's base offense level.
We are dealing with the 2002 Sentencing Guidelines in this
case. See Government's Mem. Concerning the Application of
U.S.S.G § 2L1.2(b)(1)(A) at 4, n. 4 (stating that "the parties
believe that the 2002 version of the Guidelines is the
appropriate version to use in the instant case.") Section 2L1.2
(b)(1)(A)(vii) provides for a 16 level increase to the base
offense level of 8 if the defendant was previously deported after
"an alien smuggling offense committed for profit." (emphasis
added). The Guidelines state that "committed for profit" means
"committed for payment or expectation of payment." comment. (n.
1(B)). In order to apply the 16-level enhancement to
Vargas-Serrano, therefore, the Court must find that he was
previously convicted of an alien smuggling offense committed for
In United States v. Martinez-Candejas, 347 F.3d 853, 855
(10th Cir. 2003), the Tenth Circuit held that the defendant's
prior conviction for conspiracy to transport and harbor illegal
aliens was an "alien smuggling offense" under the Guidelines and
the district court "may look beyond the elements of the prior
offense to determine whether it was `committed for profit.'" In
Martinez-Candejas, the defendant pleaded guilty to illegal reentry in violation of
8 U.S.C. § 1326. Id. at 854. The defendant had previously been
convicted in 1993 for conspiracy to transport and harbor illegal
aliens. Id. The Tenth Circuit held that the district court
properly relied on the PSR from the 1993 conviction in
determining that the prior offense had been committed "`for
profit,'thereby triggering a sixteen-level enhancement . . .
under U.S.S.G § 2L1.2(b)(1)(A)." Id. at 854, 859.
In United States v. Rodriguez-Herrera, 2004 WL 2730107 at *2
(10th Cir. Dec. 1, 2004) (unpublished decision), the Tenth
Circuit held that a 16-level increase to the base offense level
was proper because the evidence supported a determination that
the defendant had previously smuggled aliens "for profit." In
Rodriguez-Herrera, the Probation Office prepared a PSR after
the defendant pleaded guilty to violating Section 1326. Id. at
*1. The Probation Office noted the base offense level for illegal
re-entry was 8 under U.S.S.G § 2L1.2(a) and recommended a
16-level increase under § 2L1.2(b)(1)(A) because the defendant's
1998 offense of unlawfully transporting aliens was committed "for
profit." Id. Defendant objected to this characterization of his
The addendum to the PSR for sentencing on the defendant's
illegal reentry conviction explained that: "The Court adopted the
 presentence report, which indicates . . . that the
defendant along with the co-defendants . . . were in the process
of transporting the load of aliens. . . . The fees for each alien
upon delivery ranged from $600 to $850." Id. The probation
officer explained that "[t]he second thing that stood out [was
that] when . . . the Northern District applied [U.S.S.G. §
2L1.1], [it] applied a Level 12 on the Base Offense Level . . .
[a]nd then . . . it says `if the offense was committed other
than for profit, decrease by three levels. . . .' [The court]
didn't decrease . . . which is telling us that it was for
profit." Id. According to the Rodriguez court, "the 1998 PSR provided the
probation officer a reliable basis for his recommendations
because: 1) the `for profit' language was specifically included
in the . . . PSR; 2) the [court] `adopt[ed] the factual findings
of the . . . PSR as part of its sentencing;'and 3) the . . .
district court's failure to decrease Defendant's offense level
under U.S.S.G. § 2L1.1(b)(1) implied Defendant smuggled aliens
for profit." Id. at *2. Moreover, the Tenth Circuit held that a
defendant's "failure to object to a fact in a presentence report,
or failure to object at the hearing, acts as an admission of
fact." Id. (citing United States v. Shinault, 147 F.3d 1266,
1278 (10th Cir. 1998) (emphasis added).
Likewise, Vargas-Serrano pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326. He was previously convicted in 2000
of transporting illegal aliens. The 2000 PSR stated that
Vargas-Serrano received $400.00 to smuggle aliens from Mexico to
Hatch, New Mexico. During sentencing on this previous offense,
Judge Hansen adopted the factual findings of the PSR, which
"specifically included" the "`for profit' language."
Rodriguez-Herrera at *2. In addition, Vargas-Serrano's failure
to object to the facts contained in the PSR constituted an
admission that he previously smuggled aliens for profit. Id.
Judge Hansen declined to decrease Vargas-Serrano's base offense
level of 12 by 3 under U.S.S.G. § 2L1.1 for offenses committed
"other than for profit." Though not dispositive, "the absence of
the three-level decrease certainly provides some indication that
Defendant may not have qualified for the `other than for profit'
exception under the Guidelines. . . ." Id.
Counsel argues that the Supreme Court's recent ruling in
Shepard v. United States dictates a different result. In
Shepard v. United States, 2005 WL 516494 at *9 (March 7, 2005),
the Supreme Court held that the district court can look to "the
statutory definition, charging document, written plea agreements,
transcript of plea colloquy . . . any explicit factual finding by
the trial judge to which the defendant assented . . . or to some comparable judicial
record of this information" to determine a fact of prior
conviction. Id. at *3, 9 (emphasis added). The Supreme Court
noted that in pleaded cases the district court can only consider
"the statement of factual basis for the charge . . . shown by a
transcript of plea colloquy or by written plea agreement
presented to the court, or by a record of comparable findings of
fact adopted by the defendant upon entering the plea." Id. at
*5-6 (emphasis added).
I believe that, consistent with Shepard, the Court can
consider the sentencing colloquy between Judge Hansen and
Vargas-Serrano in determining if his prior conviction for alien
smuggling involved an offense committed "for profit." First,
Vargas-Serrano admitted to smuggling aliens for profit by failing
to object to the findings of fact in the PSR at his 2000
sentencing hearing before Judge Hansen. Rodriguez-Herrera at *2
(citing United States v. Shinault, 147 F.3d 1266, 1277-78 (10th
Cir. 1998). Second, during the sentencing colloquy between Judge
Hanson and Vargas-Serrano, Judge Hanson adopted the factual
findings of the PSR and Vargas-Serrano assented. This constitutes
a "comparable judicial record" to the information contained in a
transcript of a plea colloquy. Shepard at *3, 9. Because the
2000 PSR contained explicit language indicating Vargas-Serrano
smuggled aliens "for profit," Judge Hanson adopted the factual
findings contained in the 2000 PSR, Vargas-Serrano failed to
object to the 2000 PSR at sentencing, and Judge Hanson did not
decrease his base offense level by three for offenses committed
"other than for profit," the 16-level base offense level increase
is appropriate. The Court, therefore, hereby OVERRULES Defendant's objection
to the PSR and finds that the 16-level enhancement pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) is appropriate in this case.
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