U.S. v. Rodriguez-Montelongo, RODRIGUEZ-MONTELONG

• Decision Date: 23 August 2001
• Docket Number: RODRIGUEZ-MONTELONG,No. 00-51023,D,00-51023
• Citation: 263 F.3d 429
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee v. RAMONefendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 429

263 F.3d 429 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee v. RAMON RODRIGUEZ-MONTELONGO, Defendant - Appellant

No. 00-51023

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

August 23, 2001

Appeal from the United States District Court for the Western District of Texas

BeforeKING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL, District Judge.^*

SCHELL, District Judge:

The main question before this court is whether cultural assimilation is a permissible ground for downward departure. Because we conclude that cultural assimilation is a permissible ground for downward departure, we VACATE Rodriguez-Montelongo's sentence and REMAND to the district court for it to consider whether Rodriguez-Montelongo is entitled to a downward departure on the basis of cultural assimilation. We also reject Rodriguez-Montelongo's argument that his sentence violates due process because the Supreme Court has previously rejected an identical argument.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-Appellant Rodriguez-Montelongo, a Mexican citizen, was three-years old when he was brought to the United States in 1978. He later obtained legal resident status, received his education, married, and settled with his wife and four children in Colorado. On April 22, 2000, Rodriguez-Montelongo was convicted on a felony drug charge and deported. On April 30, 2000, Rodriguez-Montelongo attempted to reenter the United States without obtaining permission from the Attorney General to apply for readmission.

On August 3, 2000, Rodriguez-Montelongo pleaded guilty to attempting to reenter the United States illegally after deportation, in violation of 8 U.S.C. § 1326.¹ The presentence report ("PSR") calculated Rodriguez-Montelongo's total offense level as 21. This computation included a base offense level of 8, an increase of 16 levels because of the prior felony drug conviction, and a downward departure of 3 levels for acceptance of responsibility. He was also assigned a criminal history category of II based upon his prior felony drug conviction and the fact that he was on probation at the time this illegal reentry was attempted. Accordingly, the PSR recommended a guideline sentence range of 41 to 51 months. Rodriguez-Montelongo objected to the recommended range, arguing that the offense charged in the indictment carried a maximum penalty of two-years imprisonment.

At sentencing, the district court concluded that Rodriguez-Montelongo had a qualifying prior aggravated felony drug conviction, which required an enhancement of his sentence under 8 U.S.C. § 1326(b)(2) and § 2L1.2(b)(1)(A) of the United States Sentencing Guidelines (the "Guidelines"). The court then adopted the PSR's sentence-range recommendation. Furthermore, the district court denied Rodriguez-Montelongo's motion to depart downward from the guideline range on the ground of cultural assimilation, stating that "to this point the Fifth Circuit has not recognized [cultural assimilation] as a basis for departure, and until they do I'm not going to depart on that basis." Consequently, the district court imposed a sentence of 41-months imprisonment. Rodriguez-Montelongo appeals his sentence.

II. APPELLATE JURISDICTION

A court of appeals is "generally without jurisdiction to review a sentencing court's refusal to grant a downward departure when its decision is based upon a determination that departure was not warranted on the facts of the case before it." United States v. Thames, 214 F.3d 608, 612 (5th Cir. 2000); see also United States v. Reyes-Nava, 169 F.3d 278, 280 (5th Cir. 1999). Accordingly, this court has jurisdiction over the appeal from the district court's refusal to depart downward only if the refusal was in violation of the law. See United States v. Garay, 235 F.3d 230, 232 (5th Cir. 2000), cert. denied, 121 S. Ct. 1633 (2001); United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir.), cert. denied, 121 S. Ct. 432 (2000). "A refusal to depart downward is a violation of the law only if the district court's refusal is based on the mistaken belief that the court lacked discretion to depart." Garay, 235 F.3d at 232; Thames, 214 F.3d at 612; Yanez-Huerta, 207 F.3d at 748. Therefore, this court may review a district court's denial to depart if the district court mistakenly believed that the it lacked the authority to depart.

The district court's statement that it would not consider a downward departure for cultural assimilation until this court recognizes it as a basis for downward departure indicates that the district court believed it lacked authority to depart on this ground. As such, the panel has jurisdiction over this appeal.

III. CULTURAL ASSIMILATION AS A PERMISSIBLE GROUND FOR DOWNWARD DEPARTURE

Section 5K2.0 of the Guidelines permits the district court to make a downward departure "if the court finds 'that there exists a[] . . . 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.'" U.S. Sentencing Guidelines Manual § 5K2.0 (2000) (quoting 18 U.S.C. § 3553(b)). The Supreme Court has explained that the Sentencing Commission "did not adequately take into account cases that are, for one reason or another, 'unusual.'" Koon v. United States, 518 U.S. 81, 93 (1996).

The Guidelines enumerate certain factors that can never be bases for departure. See id. at 93; see also U.S. Sentencing Guidelines Manual § 5H1.10 (prohibiting consideration of race, sex, national origin, creed, religion, and socio-economic status); id. § 5H1.12 (prohibiting consideration of lack of guidance as a youth); id. § 5H1.4 (prohibiting downward departure for drug or alcohol dependence). Aside from the limited number of categorical prohibitions, however, the Sentencing Commission did "not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case." U.S. Sentencing Guidelines Manual ch. 1, pt. A, intro. cmt. 4(b); see also Koon, 518 U.S. at 93; Garay, 235 F.3d at 232 n.8. As summarized by the Supreme Court in Koon v. United States:

So the [Sentencing Reform] Act authorizes district courts to depart in cases that feature aggravating or mitigating circumstances of a kind or degree not adequately taken into consideration by the Commission. The Commission, in turn, says it has formulated each Guideline to apply to a heartland of typical cases. Atypical cases were not "adequately taken into consideration," and factors that may make a case atypical provide potential bases for departure. Potential departure factors "cannot, by their very nature, be comprehensively listed and analyzed in advance," of course. Faced with this reality, the Commission chose to prohibit consideration of only a few factors, and not otherwise to limit, as a categorical matter, the considerations that might bear upon the decision to depart.

518 U.S. at 94 (citation omitted) (quoting U.S. Sentencing Guidelines Manual § 5K2.0).²

Rodriguez-Montelongo moved for a downward departure based upon his long-term residence and cultural assimilation within the United States. This court has yet to determine in a published opinion whether cultural assimilation is a permissible basis for downward departure. In a series of unpublished, non-precedential opinions, however, this court appears to have acknowledged that a district court does have the authority to depart downward on the basis of cultural assimilation.³ See United States v. Terrazas-Acosta, No. 99-50957 (5th Cir. Apr. 13, 2000) (unpublished) (per curiam) ("The record indicates that the district court recognized its authority to depart downward based on cultural assimilation."); United States v. Rodriguez, No. 99-40065 (5th Cir. Oct. 19, 1999) (unpublished) (per curiam) (same); United States v. Ojeda-Martinez, No. 98-50732 (5th Cir. May 27, 1999) (unpublished) (per curiam) (same); United States v. Rangel-Silva, No. 98-40554 (5th Cir. Apr. 8, 1999) (unpublished) (per curiam) (presuming the district court recognized its authority to depart downward on the basis of cultural assimilation).

Moreover, two other circuit courts of appeals have decided that cultural assimilation is a legitimate ground for downward departure. See United States v. Lipman, 133 F.3d 726, 729-31 (9th Cir. 1998); see also United States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir. 1998) (per curiam) (relying on Lipman to state that the sentencing court was aware of its authority to depart on this ground).

In United States v. Lipman, the Court of Appeals for the Ninth Circuit concluded that "[b]ecause 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." 133 F.3d at 730. This is because, as discussed supra, except for those factors categorically proscribed by the Commission, the Guidelines "'place essentially no limit on the number of potential factors that may warrant departure.'" Id. (quoting United States v. Mendoza, 121 F.3d 510, 513 (9th Cir. 1997), in turn quoting Koon, 518 U.S. at 106).⁴

The Ninth Circuit ultimately concluded that the district court recognized its authority to depart downward, but chose not to do so on the facts of the case. See id. at 732. Accordingly, the court acknowledged that it lacked jurisdiction to review the district court's refusal to grant Lipman's downward departure motion. See id.

Considering both the Lipman and Sanchez-Valencia decisions and the series of unpublished opinions from this court, we hold that cultural assimilation is a permissible basis for downward departure. Therefore, the sentence should be vacated and the case remanded to the district court for the district court to...