U.S. v. Lipman
| Decision Date | 09 October 1997 |
| Docket Number | No. 97-50006,97-50006 |
| Citation | 133 F.3d 726 |
| Parties | 98 Cal. Daily Op. Serv. 195, 98 Daily Journal D.A.R. 256 UNITED STATES of America, Plaintiff-Appellee, v. Michael Devon LIPMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maria E. Stratton, Federal Public Defender, and Gerald C. Salseda, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant.
Mary Fulginiti, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California; John G. Davies, District Judge, Presiding. D.C. No. CR-96-00841-JGD.
Before: PREGERSON, D.W. NELSON, and HAWKINS, Circuit Judges.
Michael Devon Lipman ("Lipman") appeals his twenty-one month sentence imposed pursuant to Sentencing Guideline (U.S.S.G.) § 2L1.2 for illegal reentry after deportation for a felony conviction. Lipman contends that the district court failed to recognize its authority to depart from the Sentencing Guidelines on the basis of Lipman's "cultural assimilation" into American society and that the court erred in denying him a downward departure on that basis. We hold that "cultural assimilation" is a permissible ground for departure under the Sentencing Guidelines, that the district court properly recognized its authority to consider evidence of "cultural assimilation," and that the court exercised its nonreviewable discretion to deny departure on that basis in this case. We therefore affirm.
On July 22, 1994, Lipman lost his permanent resident status and was deported to Jamaica pursuant to 8 U.S.C. § 1251(a)(2) because he had been convicted of numerous felonies including possession of a weapon, attempted possession of marijuana, unlawful imprisonment, two counts of sexual abuse, and attempted robbery. On August 2, 1996, Lipman reentered the United States for the first time since his deportation. His port of entry was Miami. Ten days later, he was arrested in Los Angeles for possession and transportation for sale of approximately thirty-nine pounds of marijuana.
On September 10, 1996, a federal grand jury indicted Lipman on one count of illegal reentry after being deported for a felony conviction, in violation of 8 U.S.C. § 1326(a) and § 1326(b)(1). Lipman pled guilty. At sentencing, Lipman requested a downward departure pursuant to U.S.S.G. § 5K2.0 on the ground of "cultural assimilation." Lipman also requested a downward departure on grounds of "lesser harms" (U.S.S.G. § 5K2.11), "extraordinary family circumstances" (U.S.S.G. § 5H1.6), and a combination In support of his request for a downward departure based on his cultural assimilation into American society, Lipman contends that he is not the typical illegal reentry defendant because he is a "de facto American," with "significant ties" to the United States. Lipman points out that although he is a Jamaican citizen, he was brought to this country by his mother at the age of twelve and, until his deportation, he had legally resided here for an uninterrupted period of twenty-three years. Lipman attended New York public schools through high school. He married a U.S. citizen, with whom he raised five U.S. citizen children. He also fathered two other American-born children. Lipman's entire family, including his mother, three siblings, five children and wife, reside in the United States as American citizens.
of all the above factors (U.S.S.G. § 5K2.0).
Lipman contends that his cultural assimilation mitigates his culpability for the crime of illegal reentry because his reentry was "motivated by his cultural, emotional and psychological ties to this country ... developed because of a parental decision to emigrate the defendant as a child." In particular, Lipman claims that his reentry was motivated by his desire to visit his disabled U.S. citizen daughter after he learned that she had been sexually assaulted, even though his trip took him to Los Angeles instead of to his daughter's home in New York.
Lipman further contends that he is unlike the typical reentry defendant because, despite his arrest on drug-trafficking charges, his return was motivated by familial concern rather than economic incentives. According to Lipman, the typical reentry defendant lacks cultural or family ties to the United States, is motivated only by economic needs, and "come[s] to this country, commit[s] crimes, go[es] to prison, [and then] get[s] deported and return[s] to repeat the cycle several times."
Moreover, Lipman claims that deportation would cause him greater hardship than it would the typical reentry defendant because the United States is effectively his homeland. According to Lipman,
The district court denied Lipman's request for downward departure and sentenced him to twenty-one months in prison. Lipman timely appeals his sentence on the sole issue of whether he is entitled to a downward departure based on his "cultural assimilation" into American society. He contends that the district court failed to recognize its authority to depart downward from the Sentencing Guidelines on this basis and erred in denying his request to do so. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
This court has jurisdiction to review the district court's determination of whether it had authority to depart downward under the Sentencing Guidelines. See United States v. Mendoza, 121 F.3d 510, 513 (9th Cir.1997). We review departure decisions under a unitary abuse of discretion standard. See id. (citing Koon v. United States, 518 U.S. 81, ---- - ----, 116 S.Ct. 2035, 2047-48, 135 L.Ed.2d 392 (1996)). This court need not defer to a district court's determination of whether a particular factor is a permissible basis for departure because that is a question of law. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc) (citing Koon, 518 U.S. at ----, 116 S.Ct. at 2047).
This court lacks jurisdiction to review a district court's discretionary denial of a downward departure. See United States v. Webster, 108 F.3d 1156, 1158 (9th Cir.1997).
Under U.S.S.G. § 5K2.0 and its implementing statute, a departure is appropriate when "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." 18 U.S.C.
§ 3553(b). The defendant bears the burden to prove by a preponderance of the evidence that the circumstances of his or her case warrant a downward departure. See United States v. Anders, 956 F.2d 907, 911 (9th Cir.1992)
In determining whether a departure is warranted under U.S.S.G. § 5K2.0, a sentencing court "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." U.S.S.G. § 1B1.4. Except for those factors categorically proscribed by the Sentencing Commission as a basis for departure, e.g., race, sex, and national origin, the Guidelines " 'place essentially no limit on the number of potential factors that may warrant departure.' " Mendoza, 121 F.3d at 513 (quoting Koon, 518 U.S. at ----, 116 S.Ct. at 2050). If a factor has not been categorically excluded by the Sentencing Commission, a sentencing court has no authority to decide to exclude it as a matter of law. See id.
Because the Sentencing Commission has never addressed or proscribed "cultural assimilation" per se as a factor that may justify departure, we hold that a sentencing court has authority under U.S.S.G. § 5K2.0 to consider evidence of cultural assimilation.
Because cultural assimilation is "a factor [that] is unmentioned in the Guidelines," a sentencing court can only depart on this basis after considering "the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole." Sablan, 114 F.3d at 917 (quoting Koon, 518 U.S. at ----, 116 S.Ct. at 2045)(internal citation omitted). Each guideline carves out a " 'heartland,' a set of typical cases embodying the conduct" described. 18 U.S.C.App. ch.1, pt. A.4(b). "What falls within the 'heartland' of a[g]uideline is ... within the discretion and special expertise of the district court." Mendoza, 121 F.3d at 515 (citing Koon, 518 U.S. at ----, 116 S.Ct. at 2046-47). Before departing from the Guidelines, the sentencing court must therefore decide whether the considered factor, given the facts and circumstances of the case, Sablan 114 F.3d at 917 )).
Moreover, the factor of cultural assimilation is akin to the factor of "family and community ties" discussed under U.S.S.G. § 5H1.6. Thus, to the extent that cultural assimilation denotes family and community ties, we hold that the district court has the authority to depart on this basis in extraordinary circumstances. Under U.S.S.G. § 5H1.6, "[f]amily ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." U.S.S.G. § 5H1.6. But under U.S.S.G § 5K2.0, such circumstances may be relevant if "present to an unusual degree" such that the case is distinguished "from the 'heartland' cases ... in a way that is important to the statutory purposes of sentencing." U.S.S.G. § 5K2.0; see also United States v. Mondello, 927...
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