#### UNITED STATES of America, Plaintiff, v. Alejandro DIAZ-BASTARDO, Defendant.

Crim. No. 90-129 (JAF).

United States District Court, D. Puerto Rico.

June 4, 1991.

*1228Ernesto Hernández, Asst. U.S. Atty., and Daniel F. López-Romo, U.S. Atty., D. Puerto Rico, San Juan, P.R., for plaintiff.

Raymond Rivera-Esteves, Bayamón, P.R., for defendant.

OPINION AND ORDER

FUSTE, District Judge.

Defendant Alejandro Diaz-Bastardo was convicted of all five counts of an indictment charging him with violation of 8 U.S.C. § 1324(a)(1)(A).1 On August 7, 1990, a sentencing hearing was held at which time defendant was sentenced to a five-year term of imprisonment and a three-year term of supervised release. While his conviction was affirmed by the United States Court of Appeals for the First Circuit, *United States v. Díaz-Bastardo,*929 F.2d 798 (1st Cir.1991), the court vacated the sentence and remanded for further proceedings. The Court of Appeals ruled that, since the sentence imposed rested upon both valid and invalid grounds, rather than rule on the propriety of the upward departure, it would be best to allow the sentencing judge “to determine whether a departure might lie, and should be essayed, on the ground of danger.” *Id.,*929 F.2d at 800-801. Following the mandate of the First Circuit, a resentencing hearing was held on May 30 and June 3, 1991. The court heard testimony from an Immigration Special Agent and from the defendant. Based on the circumstances outlined below, we again find that an upward departure is warranted in the case of this defendant. Because this court is concerned with the all-too-frequent practice of the illegal transportation of aliens for profit between the Dominican Republic and Puerto Rico in unsafe conditions, our findings and analysis relating to the upward departure will be detailed before imposing sentence.

I. *The Context in Which Offense Took Place*

During the pendency of these proceedings, this court has had the opportunity to seriously reflect on the nature and consequences of the specific criminal activity which resulted in the conviction of defen*1229dant Diaz-Bastardo. Appended to this opinion are two April 1991 articles from The San Juan Star, a local Puerto Rico newspaper, which describe in graphic detail a voyage from the Dominican Republic to Puerto Rico in wooden boats similar to the one used in the present case. During the hearing, pursuant to Fed.R.Evid. 201 we took judicial notice of facts generally known within the territorial jurisdiction of this trial court, similar to those arising from the appended articles. During sentencing, this court’s comments, based on these facts, were not objected to by the parties and so form part of the findings. As a matter of fact, defense counsel agreed that quite often we hear of loss of life by drowning in shark-infested waters, a tragedy closely resembling that of slave-trafficking years ago.

According to a Dominican Civil Defense official, four-hundred to five-hundred Dominicans set sail for Puerto Rico each week in thirty to thirty-five foot boats, while United States authorities estimate the figure to be 2,500 per month who attempt the crossing. Of these numbers, the Dominican officials estimate that 30% arrive safely in Puerto Rico, 60% are stopped somewhere along the dangerous Mona Passage, and 10% drown. While the Immigration and Naturalization Service (“INS”) has deported almost 2,000 Dominicans since October 1, 1990 and caught a total of 3,475 in 1990, U.S. authorities estimate that only 10% of those who make the crossing are caught. The Dominican authorities have estimated that 10,000 Dominicans have drowned in the last ten years while attempting to make the crossing to Puerto Rico.

Even if the numbers are not 100% accurate, both U.S. and Dominican officials are painting a picture of tens of thousands of persons who, in their quest for a better life in the United States, have risked their lives to enter Puerto Rico. Once here, Puerto Rico becomes the gateway to the Continental United States. It is in this context that we must examine the circumstances involving the illegal conduct of those who would profit from this sense of desperation (to escape from intolerable situations) and desire (for a better life in the United States) by placing so many lives in such serious jeopardy. It is our own judgment that this court stands remiss for not earlier highlighting the magnitude and the seriousness of this problem. Because we have failed to adequately detail the circumstances surrounding these smuggling voyages, the appellate court has not had before it the “unique factors” which surround these trips between the Dominican Republic and Puerto Rico. It is with this “lens” that we “focus” our sentencing findings in the present case.

II. *Sentence*

A. Guidelines Calculation

The base level for each count of conviction has been determined to be 9, since the offenses involved the smuggling of an alien. Based on the defendant’s role in the criminal activity wherein he is viewed as the organizer and owner of the vessel, the base offense level is increased to 11 as to each count. As each count of conviction is excludable from the grouping rules of closely-related counts as defined in the United States Sentencing Guidelines § 3D1.2 (rev. ed. Nov. 1990) (hereinafter referred to as “U.S.S.G. §”), each count is treated as a separate and distinct group having the same adjusted offense level of 11. As such, pursuant to U.S.S.G. § 3D1.4, an additional 4-level increase is warranted, thereby establishing a combined offense level of 15. After determining that defendant’s Criminal History Category to be I, the guidelines mandate an imprisonment range of 18 to 24 months.

B. Departure

1. *Standards For Departure*

Under 18 U.S.C. § 3553(a), it is the duty of a district court to impose a sentence “sufficient, but not greater than necessary,” to comply with certain purposes outlined in the statute.2 Section 3553(b) requires that a court

> *1230shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) [the Guidelines] unless 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.

18 U.S.C. § 3553(b). The sentencing court may only use the sentencing guidelines, policy statements and official commentary to determine whether a circumstance was adequately taken into consideration by the Sentencing Commission. *Id.*

In *United States v. Díaz-Villafañe,*874 F.2d 43, 49 (1st Cir.), *cert. denied,*— U.S. —, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989), the First Circuit outlined a three-step process to review departures by sentencing courts. First the reviewing court will determine whether the circumstances relied upon by the trial court make the case sufficiently “unusual” to warrant departure. Such review is plenary since determining “whether or not circumstances are of a kind or degree that they may appropriately be relied upon to justify departure” is a matter of law. *Id.*Second, the appellate court must “determine whether the circumstances, if conceptually proper, actually exist in the particular case.” *Id.*Because this step involves the trial court in factfinding, the trier’s determinations will be set aside only for clear error. *Id.; See*18 U.S.C. § 3742(e). The third step for the reviewing court, after determining that the circumstances relied upon by the trial court were both appropriate and had adequate support in the record, is to determine whether the direction and the degree of the departure meet the standard of reasonableness. *Id.*As the Court of Appeals opined,

> This third step involves what is quintessentially a judgment call. District courts are in the front lines, sentencing flesh- and-blood defendants. The dynamics of the situation may be difficult to gauge from the antiseptic nature of a sterile paper record. Therefore, appellate review must occur with full awareness of, and respect for, the trier’s superior “feel” for the case. We will not lightly disturb decisions to depart, or not, or related decisions implicating degrees of departure.

*Id.*at 49-50.

Subsequently, in *United States v. Trinidad De La Rosa,*916 F.2d 27 (1st Cir.1990), the First Circuit had the opportunity to apply the *Díaz-Villafañe*departure analysis to the guideline section, U.S.S.G. § 2Ll.l(a).3 After examining the sentencing court's findings, the Court of Appeals found that the Commentary to Section 2L1.1, acknowledging that the Commission has not considered offenses where large numbers of aliens, dangerousness or inhumane treatment is involved, eliminated step one of the *Díaz-Villafañe*analysis.4*Id.*at *123130. The court went on to find that fifty persons met the “large numbers” requirement and took judicial notice of the fact that fifty-four people crowded into a 34-foot yawl created a dangerous condition, thus justifying the consideration of an upward departure. *Id.*However, the appellate court also found that there was an insufficient factual basis to make a finding that the aliens were inhumanely treated. *Id.*at 30-31. Given that defendant Trinidad De La Rosa did not share responsibility for organizing the trip nor did he have any control over the number of passengers aboard the boat, the Court of Appeals felt that an upward departure in this defendant’s case was not reasonable.

More recently, in *United States v. Reyes,*927 F.2d 48 (1st Cir.1991), the First Circuit again had the opportunity to consider an upward departure in sentencing for a conviction for smuggling aliens by boat from the Dominican Republic. The sentencing court found an upward departure warranted based upon, *inter alia,*both the potential tragic consequences of the voyage and the reckless endangerment of human lives. *Id.*at 51. The court noted that the smuggling of aliens from the Dominican Republic to Puerto Rico, while not necessarily implicating inhumane treatment, “ordinarily involve[s] a large number of aliens aboard unseaworthy vessels and under dangerous conditions, circumstances which might justify a departure in almost every case.” *Id.*at 52. The court went on to affirm the trial court’s upward departure. *Id.*at 53.

2. *Circumstances Warranting Departure in the Present Case*

Based on 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0, we believe that the circumstances involving Diaz-Bastardo’s participation in this offense warrant an upward departure since these “aggravating circumstances” are of a kind that are not taken into account by the Sentencing Commission. Specifically, we find that the departure is warranted based upon both the large number of aliens involved and the dangerousness of the voyage. As to this latter ground, we also find that defendant’s conduct, in drinking and turning over control of the vessel, exacerbated an already dangerous situation.

This court finds that fifty persons meets the “large numbers” requirement contemplated in Commentary 8 of Section 2L1.1. Also, we, like the First Circuit, will take judicial notice of the fact that placing fifty-four human beings in a thirty-four foot, rough, flatbottom, homemade yawl powered by a single, small outboard engine, creates a dangerous condition. *See Trinidad De La Rosa,*916 F.2d at 30. From law enforcement testimony both at trial and at resentencing, we know the dimensions of the boat and that it was homemade. (Trial Tr. 31, 36; Resentencing Hearing, Testimony Miguel Domingo). Marine Enforcement Officer Casasus also testified at trial that, because it was a homemade boat, its seaworthiness was questionable since such boats are prone to springing leaks, especially when encountering the seas of the Mona Passage. (Trial Tr. 36). In fact, codefendant Hernández testified that the boat was, indeed, leaking and that everyone on the boat was bailing water. (Trial Tr. 78). Also, the lack of any safety equipment — life jackets, radio, food and water— while making a journey of at least ninety nautical miles (closest points land to land) that could take as long as twenty-four hours, (Testimony, Agent Domingo) also added to the element of danger.

As to defendant’s conduct, the record is clear that he was the owner of the ship and the organizer of the trip. Testimony of the passengers, as well as his codefendants confirmed these facts. (Trial Tr. 44-48, 57, 67, 73, 78-80, 87). Also, both his own testimony and that of witnesses confirmed that he had been drinking both before embarking on the journey and during the passage. While defendant may have had help in the piloting of the boat, it seems clear that, of the three codefendants, he would have been the most experienced captain. To embark on such a risky venture, being responsible for over fifty lives, and to do so while under the effects of alcohol, represents the type of aggravating circumstances for which departure is warranted.

*1232Our experience here in Puerto Rico with these types of trips convinces us that the basic facts of this case are not atypical of the many voyages attempted from the Dominican Republic to Puerto Rico each year. While we can, in some way, sympathize with the plight of those who might wish to enter our borders in order to seek a better life, we do not find the same level of compassion for those who exploit the situation of others for profit and do so under conditions that, in the end, create the real possibility that lives will be lost. At resentencing, agent Domingo testified that he personally had participated in three rescue operations involving these types of voyages where bodies had been pulled out of the water. To the extent that more severe sentences will deter others from either attempting to organize these trips or, at the very least, motivate organizers and owners to be more safety conscious, we feel that upward departures, under circumstances similar to those found in the present case, are certainly justified.

Therefore, it is the judgment of the court that the defendant is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 48 months as to each of Counts One through Five, both inclusive, said terms of imprisonment to be served concurrently with each other.

Having considered the defendant’s financial condition, the court finds that the imposition of a fine is not viable.

Upon release from confinement, the defendant shall be placed on supervised release for a term of three (3) years as to each count, said terms to be served concurrently with each other, upon the following terms and conditions:

1. The defendant shall comply with the standard conditions of supervised release promulgated by the Sentencing Commission and adopted by this court.

2. If deported, or granted voluntary departure, the defendant shall remain outside the United States, and all places subject to its jurisdiction, unless prior written permission to reenter is obtained from the pertinent legal authorities and defendant notifies in writing the Probation Officer of this court to that effect.

Pursuant to Title 18, U.S.Code, Section 3013, a special monetary assessment in the amount of $50.00 as to each count, for a total of $250.00, is also imposed.

IT IS SO ORDERED.

*1233APPENDIX

*1234

*1235

1

. The statute provides in pertinent part:

> (1) Any person who—

> (A) knowing that a person is an alien, brings or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry ..., regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien; ... shall be fined in accordance with Title 18, or imprisoned not more than five years, or both, for *each*alien in respect to whom any violation of this paragraph occurs.

8 U.S.C. § 1324(a)(1)(A) (emphasis added).

2

. These purposes are outlined in § 3553(a)(2) and include "the need for the sentence imposed — ”

> *1230(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

> (B) to afford adequate deterrence to criminal conduct;

> (C) to protect the public from further crimes of the defendant; and

> (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.

3

. Trinidad De La Rosa was tried along with the present defendant for the same facts of this case. The appellate opinion there preceded the one in this case.

4

. Here we note that the Circuit Court quoted Commentary 8 of Section 2L1.1 as stating that "[t]he commission has not considered offenses involving large numbers of aliens *and*dangerous *or*inhumane treatment. An upward departure should be considered in those circumstances.” (Emphasis in original). In fact, the language of Commentary 8 is completely in the disjunctive: "[Ijarge numbers of aliens *or*dangerous *or*inhumane treatment.” (Emphasis added). We have examined the Historical Note to Section 2L1.1, Appendix C, No. 37, which states that this note was inserted effective January 15, 1988. We have found no reference in the United States Sentencing Commission Guidelines Manual showing that Commentary 8 had been amended or that a prior version existed, except for a note in *U.S. v. Reyes,*927 F.2d 48, 52 n. 2 (1st Cir.1991), which refers to an "old version” of Commentary 8 which is no longer applicable. We therefore read Commentary 8 as authorizing an upward departure where any *one*of the three circumstances (large numbers of aliens, dangerousness, inhumane treatment) is found in a particular case.