*

Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit

Judge for the Fourth Circuit, sitting by designation. 

 1

Bernal and Berges were convicted of (1) conspiring to

violate the Lacey Act Amendments of 1981, 16 U.S.C. §§ 3371-3378,

and the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544

(in violation of 18 U.S.C. § 371); (2) engaging in an intended

sale, purchase, and transport of wildlife sold in violation of

the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in

violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (3) attempting

to export wildlife that they knew had been sold in violation of

the Endangered Species Act of 1973, 16 U.S.C. § 1538(a)(1)(F) (in

violation of 16 U.S.C. § 3372(a)(1) and (a)(4)); (4) knowingly

engaging in the trade of wildlife specimens contrary to the

provisions of the Convention on International Trade in Endangered

Species of Wild Fauna and Flora ("CITES") without first obtaining

a valid export permit and re-export certificate as required by

CITES and 50 C.F.R. § 23.12(b)(1) (in violation of 16 U.S.C. §

1538(c)(1) and (g)); and (5) attempting to export endangered

United States Court of Appeals,

Eleventh Circuit.

No. 94-4783.

UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,

v.

Victor BERNAL, Defendant-Appellee, Cross-Appellant,

Eduardo Berges, Defendant-Appellee.

Aug. 6, 1996.

Appeals from the United States District Court for the Southern

District of Florida. (No. 93-84-CR-FAM), Federico A. Moreno, Judge.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*

, Senior

Circuit Judges.

PER CURIAM:

 Victor Bernal and Eduardo Berges were convicted of various

crimes in connection with an attempt to export two endangered

primates—an orangutan and a gorilla—from the United States to

Mexico in violation of the Lacey Act Amendments of 1981 and the

Endangered Species Act of 1973.1 The applicable sentencing range
species of wildlife from the United States (in violation of 16

U.S.C. §§ 1538(a)(1)(A) and (g)). 

 2All counts were grouped together for purposes of offense

level computation. See U.S.S.G. § 3D1.2(d).

Bernal's base offense level was 6 under the guideline

applicable to offenses involving fish, wildlife, and plants. 

U.S.S.G. § 2Q2.1(a). (The base offense level for a

conspiracy count is the same as that for the substantive

offense. See U.S.S.G. § 2X1.1.) His base level was

increased by 2 levels because the offense "was committed for

pecuniary gain or otherwise involved a commercial purpose,"

§ 2Q2.1(b)(1)(A); increased by 6 levels because the

purchase price of the wildlife exceeded $70,000, §

2Q2.1(b)(3)(A); § 2F1.1(b)(1)(G); and increased by 3

levels to reflect Bernal's role as an organizer of the

operation, § 3B1.1(a), (b). His total offense level was 17

(imprisonment for 24 to 30 months).

The probation officer applied the same calculation in

the case of Berges, with the exception of the 3-level

increase for a leadership role. His total offense level was

14 (imprisonment for 15 to 21 months). 

 3

Bernal was also sentenced to three years of supervised

release on three counts and one year of supervised release on two

other counts, and was fined $40,000. Berges was likewise

sentenced to supervised release, but was not fined. 

under the Sentencing Guidelines was twenty-four to thirty months

for Bernal and fifteen to twenty-one months for Berges. 2 The

probation officer noted in the presentence report that a downward

departure from the guidelines range might be warranted in Bernal's

case under U.S.S.G. § 5K2.11 because Bernal had intended to export

the gorilla for purposes of breeding and exhibition, and thus his

conduct did not "cause or threaten the harm or evil sought to be

prevented by the law" under which he was convicted. The probation

officer did not consider a similar downward departure for Berges.

Following a lengthy sentencing hearing, the district court decided

to apply U.S.S.G. § 5K2.11 to both defendants, and gave them

sentences of only seventy days (which they had already served). 3
 4

Appellees have cross-appealed on two grounds. First, they

claim that the Lacey Act is not applicable in this case because

the term "wildlife," as used in the Act, does not apply to

animals bred in captivity. Second, they claim that the district

court erred in denying their motion for acquittal with respect to

the Lacey Act counts because there was no evidence introduced at

trial to prove that they knew the animals had previously been

sold in violation of the law. These claims are wholly meritless,

and we therefore reject the cross-appeal. 

 5To determine whether a circumstance was adequately taken

into consideration, the court may "consider only the sentencing

guidelines, policy statements, and official commentary of the

Sentencing Commission." 18 U.S.C. § 3553(b). 

The United States now appeals the sentences imposed on both

defendants.4

 We review a district court's decision to depart downward from

the sentencing guidelines for an abuse of discretion. See Koon v.

United States, --- U.S. ----, 116 S.Ct. 2035, --- L.Ed.2d ----

(1996). A district court may impose a sentence outside of the

sentencing range established by the guidelines if the court finds

"that there exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines that should

result in a sentence different from that described."5

 18 U.S.C. §

3553(b); U.S.S.G. § 5K2.0. One such circumstance identified in

the guidelines as a possible ground for departure is when the

defendant's conduct does not "cause or threaten the harm or evil

sought to be prevented by the law proscribing the offense at

issue." U.S.S.G. § 5K2.11.

 The purpose of the Lacey Act is to protect "those species of

fish and wildlife whose continued existence is presently

threatened" by "gradually drying up the international market for
 6

Since the special factor in this case is an "encouraged

factor," see U.S.S.G. § 5K2.11, the district court was authorized

to depart if the applicable guideline did not take it into

account. See Koon, --- U.S. at ----, 116 S.Ct. at 2045. 

endangered species," thus "reducing the poaching of any such

species in the country where it is found." See S.Rep. No. 91-526,

91st Cong., 1st Sess., reprinted in 1969 U.S.C.C.A.N. 1413, 1415-

16. Likewise, one of the purposes of the Endangered Species Act is

to enforce international agreements designed "to conserve to the

extent practicable the various species of fish or wildlife and

plants facing extinction." 16 U.S.C. § 1531(a)(4); see also

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184, 98 S.Ct. 2279,

2297, 57 L.Ed.2d 117 (1978).

 The district court found that there was no evidence that

Bernal intended to harm the primates involved in this case.

Rather, the evidence showed that Bernal, the director of a Mexican

state Commission of Parks and Resources and of Foreign Fauna, was

a conservationist, that he loved animals, and that he intended to

use the gorilla for breeding purposes to help perpetuate the

species. The district court also found that Berges knew that

Bernal intended to use the gorilla for breeding and exhibition

purposes. The court concluded that the conduct of both Bernal and

Berges did not "cause or threaten the harm or evil sought to be

prevented by the law proscribing the offense at issue." U.S.S.G.

§ 5K2.11. Because the court concluded that the Sentencing

Commission did not consider the special factors involved in this

case under the applicable sentencing guideline, it decided that a

downward departure was justified.6 The district court did not
abuse its discretion in making this decision.

AFFIRMED.