United States v. Jose Hernandez-Vasquez, 884 F.2d 1314 (9th Cir. 1989). · Go Syfert
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United States v. Jose Hernandez-Vasquez, 884 F.2d 1314 (9th Cir. 1989). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases, last quoted 1990 · …only in limited circumstances where the defendant's record is 'significantly more serious' than that of other defendants in the same criminal history category. at p. 1316 ≈ altered
47 citation events (2 in the last 25 years) across 8 distinct courts.
Strongest positive: United States v. Vernon Lee Bad Marriage, Jr. (ca9, 2004-12-30)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 31 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Vernon Lee Bad Marriage, Jr. (2×)
9th Cir. · 2004 · confidence medium
"A factor already calculated into a sentence under the guidelines may not be a proper basis for departure." Id. at 189 (quoting United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989)). 46 The government attempts to distinguish Henderson on the grounds that Bad Marriage's criminal history score was capped at four points, pursuant to § 4A1.1(c), even though he actually earned seven points.
cited Cited as authority (rule) United States v. Thomas Merino, United States of America v. William Merino
9th Cir. · 1994 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Francisco Javier Marmolejo-Quiroz, AKA Pancho AKA Juan Meza-Amado AKA Luis Enrique Campillo
9th Cir. · 1994 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989) (per curiam). 7 Here, Marmolejo-Quiroz was placed in criminal history category III on the basis of the following prior convictions: illegal entry in 1983, illegal reentry after deportation in 1984, and misconduct involving weapons in 1986.
discussed Cited as authority (rule) United States v. Daniel Joe Chischilly (2×)
9th Cir. · 1994 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989).
cited Cited as authority (rule) United States v. Jorge Carrillo-Alvarez
9th Cir. · 1993 · confidence medium
United States v. Gayou, 901 F.2d 746, 748 (9th Cir.1990) (defendant in category IV) (citing United States v. Hernandez-Vasquez, 884 F.2d 1314, 1336 (9th Cir.1989)).
discussed Cited as authority (rule) United States v. Ronald Kaye Henderson (2×)
9th Cir. · 1993 · confidence medium
A factor already calculated into a sentence under the guidelines may not be a proper basis for departure.” United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989) (citations omitted).
discussed Cited as authority (rule) Williams v. United States (2×)
SCOTUS · 1992 · confidence medium
Compare United States v. Zamarripa, 905 F. 2d 337, 342 (CA10 1990) (when one or more of the stated grounds for departure is invalid, the case must be remanded for resentencing); United States v. Hernandez-Vasquez, 884 F. 2d 1314, 1315-1316 (CA9 1989) (same), with United States v. Franklin, supra, at 508-509 (when one or more of the stated grounds for departure is invalid, appellate court may affirm if sentence is still reasonable in light of remaining factors); United States v. Rodriguez, 882 F. 2d 1059, 1066-1068 (CA6 1989) (same), cert. denied, 493 U. S. 1084 (1990); United States v. Hummer,…
discussed Cited as authority (rule) United States v. Lawrence Dean Faulkner
9th Cir. · 1991 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989); cf. United States v. Enriquez-Munoz, 906 F.2d at 1358 (no remand where clear from record that departure inappropriate and maximum guidelines sentence has already been served).
discussed Cited as authority (rule) United States v. Anthony Roderick Phillip (2×)
6th Cir. · 1991 · confidence medium
See generally United States v. Williams, 922 F.2d 737, 739-40 (11th Cir.1991); United States v. Fonner, 920 F.2d 1330, 1334 (7th Cir.1990); United States v. Franklin, 902 F.2d 501, 508 (7th Cir.1990); and United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989). 111 The factors applied to considering counts 2 and 3 of the indictment relating to the criminal abuse charges were used by the District Court to judge the factual basis of cruelty, brutality and degradation considered in section 5K2.8.
discussed Cited as authority (rule) United States v. Steven D. Jones
D.C. Cir. · 1991 · confidence medium
The Ninth and Tenth Circuits hold *741 that when a departure is based on improper and proper grounds, the case must be remanded for new sentencing because the reviewing court has “no way to determine whether any portion of the sentence was based upon consideration of improper factors.” United States v. Nuño-Para, 877 F.2d 1409, 1414 (9th Cir.1989); see also United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir.1990); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Marilyn Louise Harrell
4th Cir. · 1991 · confidence medium
See United States v. Castro-Cervantes, 927 F.2d 1079, 1982 (9th Cir.1991); United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir.1990); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Robert Bolinger (2×)
9th Cir. · 1991 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Michael Ahuja
2d Cir. · 1991 · confidence medium
Some circuits have taken the view that “[w]hen one of two or more stated reasons for departure is invalid, the case must be remanded for resentencing because the reviewing court cannot determine whether the same departure would have resulted absent the improper factor.” United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir.1990); see United States v. Michael, 894 F.2d 1457 , 1460 & n. 2 (5th Cir.1990) (although district court placed greater emphasis upon a factor that alone provided reasonable basis for departure, “we cannot say that it did not also rely upon the [improper] factor as a…
discussed Cited as authority (rule) United States v. Lawrence Dean Faulkner
9th Cir. · 1991 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989); cf. United States v. Enriquez-Munoz, 906 F.2d at 1368 (no remand where clear from record that departure inappropriate and maximum guidelines sentence has already been served).
cited Cited as authority (rule) United States v. Jimmie L. Ward
9th Cir. · 1990 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989).
cited Cited as authority (rule) United States v. Joseph N. Williams
7th Cir. · 1990 · confidence medium
But see United States v. Zamarripa, 905 F.2d 337, 339-40 (10th Cir.1990); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
cited Cited as authority (rule) United States v. Luis Montenegro-Rojo
9th Cir. · 1990 · confidence medium
See also Cervantes-Lucatero, 889 F.2d at 919 ; United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989).
examined Cited as authority (rule) United States v. Miguel Rodriguez-Castro (3×) also: Cited "see", Cited "see, e.g."
9th Cir. · 1990 · confidence medium
See United States v. Montenegro-Rojo, No. 89-50134, slip op. 3695, 3704 (9th Cir., Apr. 12, 1990) (past use of alias justifies departure on basis of criminal history); Hernandez-Vasquez, 884 F.2d at 1316 (repeated use of aliases justifies departure generally).
discussed Cited as authority (rule) United States v. Jorge Edmundo Enriquez-Munoz (2×)
9th Cir. · 1990 · confidence medium
We also decided at our conference that it would be inappropriate for us to prolong the period of illegal detention by remanding the case for resentencing. 2 Cf. United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Dario Restrepo (2×)
9th Cir. · 1990 · confidence medium
See Guidelines at 1.6-1.7; United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989). .
cited Cited as authority (rule) United States v. Willie Lee Franklin, Jerome Mann, Willie R. Anderson and Andrea Y. Mann
7th Cir. · 1990 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989); United States v. Nuno-Para, 877 F.2d 1409, 1414 (9th Cir.1989).
cited Cited as authority (rule) United States v. Enrique Mendoza, Jr.
9th Cir. · 1990 · confidence medium
United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Michael Gayou
9th Cir. · 1990 · confidence medium
Although criminal history is a permissible ground for departure, since the Guidelines already consider a defendant’s criminal history in computing his sentence, this ground should be utilized “only in limited circumstances where the defendant’s record is ‘significantly more serious’ than that of other defendants in the same [criminal history] category.” United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989).
cited Cited as authority (rule) United States v. Jorge Ramirez Acosta
9th Cir. · 1990 · confidence medium
See also United States v. Lucatero, No. 89-30033, slip op. at 13745 (9th Cir. Nov. 20, 1989); United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Daniel Cervantes Lucatero (2×) also: Cited "see"
9th Cir. · 1989 · confidence medium
Because the guidelines do consider a defendant’s criminal history, it is a proper ground for departure “only in limited circumstances where the defendant’s record is ‘significantly more serious’ than that of other defendants in the same [criminal history] category.” United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989); accord Sentencing Guidelines § 4A1.3 and Commentary.
discussed Cited "see" United States v. Michael Allen Washburn
6th Cir. · 1995 · signal: see · confidence high
See United States v. Hernandez-Vasquez, 884 F.2d 1314, 1316 (9th Cir.1989) (an upward departure under Sec. 4A1.3 is not warranted in the absence of evidence that a defendant's "record differed significantly from others in the same category"). 12 The district court seemed primarily concerned with defendant's use of a weapon during the instant offense.
discussed Cited "see" United States v. Keith Alan Stepp
9th Cir. · 1991 · signal: see · confidence high
See United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989). 15 On resentencing, Stepp's drug abuse is not to be used as a ground for upward departure absent the findings required by Richison, 901 F.2d at 871 .
cited Cited "see" United States v. Alejo Cota-Guerrero
9th Cir. · 1990 · signal: see · confidence high
See United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315 (9th Cir.1989).
discussed Cited "see, e.g." United States v. Emiliano Cruz-Ventura
9th Cir. · 1992 · signal: see also · confidence low
See U.S.S.G. § 4A1.3(a) (prior sentences not used in computing the criminal history category); U.S.S.G. § 4A1.3(d) (criminal matters pending in other tribunals when offense is committed); U.S.S.G. § 4A1.3(e) (prior similar adult conduct not resulting in a criminal conviction); United States v. Montenegro-Rojo, 908 F.2d 425, 428 (9th Cir.1990) (defendant’s use of fictitious names is a permissible basis for upward departure); see also United States v. Hernandez-Vasquez, 884 F.2d 1314 (9th Cir.1989) (defendant’s use of aliases is proper ground for departure).
discussed Cited "see, e.g." United States v. Alejandro Diaz-Bastardo
1st Cir. · 1991 · signal: compare · confidence medium
Compare, e.g., United States v. Franklin, 902 F.2d 501, 508 (7th Cir.) (“[WJhen a court relies on both proper and improper factors to justify an upward departure, the sentence can be upheld if, standing alone, the proper factors justify the magnitude of the departure”), cert. denied, — U.S. —, 111 S.Ct. 274 , 112 L.Ed.2d 229 (1990) and United States v. Rodriguez, 882 F.2d 1059, 1068 (6th Cir.1989) (similar), cert. denied, — U.S. —, 110 S.Ct. 1144 , 107 L.Ed.2d 1048 (1990) with United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989) (per curiam) (“If a court reli…
cited Cited "see, e.g." United States v. Lester Leroy Hummer
4th Cir. · 1990 · signal: see, e.g. · confidence medium
See, e.g., United States v. Hernandez-Vasquez, 884 F.2d 1314, 1315-16 (9th Cir.1989) (per curiam); United States v. Zamarripa, 905 F.2d 337, 342 (10th Cir.1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jose HERNANDEZ-VASQUEZ, Defendant-Appellant
C.A. 88-5236.
Court of Appeals for the Ninth Circuit.
Sep 14, 1989.
884 F.2d 1314
1989 U.S. App. LEXIS 13985
1989 WL 104561
Carol Lam, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee., Barbara L. Davis, San Diego, Cal., for defendant-appellant.
Schroeder, Boochever, Beezer.
Cited by 40 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 61%
Citer courts: D. Arizona (1)
PER CURIAM:

Jose Hernandez-Vasquez was arrested after a high-speed chase. He pled guilty and was convicted of transporting illegal aliens under 8 U.S.C. § 1324(a)(1)(B). The district court sentenced him to a term of 24 months, an 8-month-upward departure from the maximum sentence calculated under the Sentencing Guidelines. Hernandez appeals. Because we find that the court relied on improper factors in departing from the guidelines, we vacate the sentence and remand for immediate resentencing.

The district court relied on three factors to justify departing from the guidelines: the high-speed chase during apprehension of the defendant, Hernandez-Vasquez’ pri- or criminal record, and his obstruction of justice by repeatedly using an alias before the court. Hernandez-Vasquez argues that these factors do not support an enhancement of his sentence determined under the United States Sentencing Commission Guidelines Manual. The government responds that the district court is not limited in the factors it may consider in imposing sentence. The government argues that the sentence imposed on Hernandez-Vasquez is reasonable and should be affirmed. We reject the government’s arguments.

The guidelines anticipate that departure will be rare. Sentencing Guidelines ch. 1, Part A, Introduction 4(b). A factor already calculated into a sentence under the guidelines may not be a proper basis for departure. United States v. Nuno-Para, 877 F.2d 1409, 1412-14 (9th Cir.1989). If a court relies on both proper and improper factors, the sentence must be[*1316] vacated and the case remanded. Id. at 1414. Accordingly, if the court chooses to depart from the guidelines, it must state the reasons for departure from the guidelines with sufficient specificity to allow meaningful review. United States v. Wells, 878 F.2d 1232, 1233 (9th Cir.1989) (per curiam).

We have held that causing a high-speed chase is a proper reason for departure from the guidelines when the defendant was the driver of the vehicle. United States v. Ramirez-De Rosas, 873 F.2d 1177, 1178-79 (9th Cir.1989). Because Hernandez-Vasquez was not the driver and there is no evidence on the record before us that he was responsible for this chase, this was an improper ground for departure from the guidelines.

Criminal history may also be a ground for departure, but only in limited circumstances where the defendant’s record is “significantly more serious” than that of other defendants in the same category. Sentencing Guidelines § 4A1.3 and Commentary. Because there is no showing that Hernandez-Vasquez’ record differed significantly from others in the same category, this was also an improper ground for departure.

Hernandez-Vasquez’ obstruction of justice by lying to the court is well documented in the record before us and is therefore a proper ground for departure.

Because the district court considered improper factors, we must vacate the sentence and remand for resentencing. However, the defendant has been in custody since February 10, 1988, and his sentence is due to expire on February 9, 1990. We see no justification for enhancing Hernandez-Vasquez’ guideline sentence by a period of more than 3 months on account of using an alias in the district court proceedings. An appropriate sentence should not have exceeded the period of time that the defendant has already served. Accordingly, Hernandez-Vasquez is entitled to release from custody after serving a lawfully imposed sentence. The district court should impose such an amended sentence upon remand.

The mandate in this appeal shall issue forthwith.

VACATED and REMANDED.