U.S. v. Restrepo

Citation999 F.2d 640
Decision Date23 July 1993
Docket NumberD,No. 1065,1065
PartiesUNITED STATES of America, Appellant, v. Jorge RESTREPO, Defendant-Appellee. ocket 92-1631.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Julie E. Katzman, Asst. U.S. Atty., Brooklyn, NY (Mary Jo White, U.S. Atty., E.D.N.Y., David C. James, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellant.

Robert C. Dorf, New York City for defendant-appellee.

Robert A. Culp, New York City (Lory Rosenberg, American Immigration Law Foundation Legal Action Center, Washington, DC, Robert Juceam, Fried, Frank, Harris, Shriver & Jacobson, New York City, of counsel), for amici curiae American Immigration Law Foundation Legal Action Center and Nat. Immigration Project of the Nat. Lawyers Guild.

Before: TIMBERS, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

The United States appeals from a final judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, convicting defendant Jorge Restrepo, following his plea of guilty, on one count of importing heroin in violation of 21 U.S.C. § 952(a) (1988), and sentencing him principally to 33 months' imprisonment, to be followed by three years' supervised release. The district court imposed this sentence in a downward departure from the range prescribed by the federal Sentencing Guidelines ("Guidelines"), ruling that such a departure was warranted because Restrepo, as an alien, would be deported and would suffer other collateral consequences not suffered by United States citizens. On appeal, the government contends that this was not a permissible basis for departure. For the reasons below, we agree and vacate the judgment.

I. BACKGROUND

Restrepo, who is married to a United States citizen with whom he has had three children, is a conditional permanent resident alien of the United States. A native of Colombia, he entered the United States illegally in 1985. He became a lawful United States resident on March 8, 1991, approximately one year after his marriage, when the Immigration and Naturalization Service ("INS") granted him his present status. In addition to his wife and three children, Restrepo has several siblings who reside in the United States.

On November 20, 1991, Restrepo flew from Bogota, Colombia, to John F. Kennedy International Airport in New York City. Upon his arrival in New York, a United States Customs Service ("Customs") agent interviewed Restrepo and thought that he appeared nervous and that his answers to routine questions seemed evasive. The agent therefore asked Restrepo if he would submit to an X-ray examination. Restrepo consented Restrepo was indicted on one count of importation of heroin, in violation of 21 U.S.C. § 952(a), id. § 960(a)(1) (1988), and id. § 960(b)(2)(A) (1988 & Supp. II 1990); and one count of possession of heroin, in violation of 21 U.S.C. § 841(a)(1) (1988), and id. § 841(b)(1)(B)(i) (1988 & Supp. II 1990). Pursuant to a plea agreement, he pleaded guilty to the importation count in full satisfaction of the charges against him. The agreement estimated that Restrepo's likely total offense level under the Guidelines would be 26, which, assuming he had no prior convictions, would have resulted in an imprisonment range of 63-78 months. The agreement also stated that "[t]his estimate is not binding on the Court or on the parties, and if the appropriate Guideline offense level as determined by the Court is different, the defendant will not be entitled to withdraw the plea." In addition, Restrepo agreed not to move for a downward departure from the applicable sentencing guideline range; the government agreed not to move for an upward departure from that range.

                and the examination revealed the presence of foreign materials in his digestive system.   Customs agents placed Restrepo under arrest;  he thereafter passed some 82 balloons that contained 562.5 grams of a substance that was 28% heroin
                

The Probation Department's Presentence Report ("PSR") prepared on Restrepo calculated his base offense level as 28. See Guidelines § 2D1.1(c)(8). It recommended decreasing the offense level by six steps to 22, based in part on Restrepo's minimal role in the activity, see Guidelines § 3B1.2(a) (four steps), and in part on his acceptance of responsibility, see Guidelines § 3E1.1(a) (two steps). Since Restrepo had no known prior criminal record, his criminal history category was I, which resulted in a prescribed imprisonment range under the Guidelines of 41-51 months.

At a sentencing hearing held on June 12, 1992, the district court announced sua sponte that it believed "[t]here [we]re several grounds here for a potential downward departure," (Sentencing Transcript, June 12, 1992 ("Tr."), at 4), including the "unusually low" purity of the heroin Restrepo was carrying (id.), a then-proposed amendment to Guidelines § 3E1.1 (eff. Nov. 1, 1992) to decrease a defendant's offense level by one for timely notification of an intention to plead guilty (see Tr. at 5), and the fact that Restrepo would "suffer a collateral consequence, a significant collateral consequence, as a result of this sentence because he's a permanent resident alien" (id. at 29). The court indicated that any such departure would not exceed two offense levels. The government objected to the proposed departure and requested an opportunity to present its position in writing.

After receiving the government's written opposition, the district court, in an opinion dated August 17, 1992, and reported at 802 F.Supp. 781, stated its intention to depart downward by two offense levels based solely on the collateral consequences Restrepo would face due to his status as a permanent resident alien. The court found that Restrepo would suffer three principal consequences that the court viewed as being as punitive as an additional term of incarceration. First, a resident alien convicted of a narcotics offense must be deported unless he is eligible for discretionary relief from deportation. Since Restrepo could not meet even the most lenient of the statutory requirements for obtaining such relief, the court found that "for the crime that he committed, Mr. Restrepo will be punished with 'a life sentence of banishment in addition to the punishment which a citizen would suffer for the identical acts.' " Id. at 783 (quoting Jordan v. De George, 341 U.S. 223, 232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951) (Jackson, J., dissenting)).

Second, the court found that due to a policy of the Bureau of Prisons (hereinafter sometimes the "Bureau"), "solely because of his status as a deportable alien, the defendant's sentence will be served under circumstances that are more severe than those facing a United States citizen under similar circumstances." 802 F.Supp. at 783. Under that policy, Restrepo, as a deportable alien, would receive a "Public Security Factor" designation, see Bureau of Prisons, Program Statement 5100.4: Security Designation and Custody Classification Manual 7 (1992), that would render him ineligible (a) to serve his sentence in a minimal security facility, and Third, because Restrepo is a deportable alien, the INS will file a detainer with the Bureau of Prisons some time prior to the end of his prison sentence. The filing of the detainer could result in Restrepo's being incarcerated in an INS facility for an additional period while awaiting the completion of deportation proceedings. Relying on a government report, United States General Accounting Office, Immigration Control: Immigration Policies Affect INS Detention Efforts 26 (1992), the district court found that the average length of time criminal aliens were detained in INS facilities beyond the end of their period of imprisonment was 59 days. 802 F.Supp. at 784. The court thus presumed that Restrepo would likewise be incarcerated "for a longer period of time and under far more difficult circumstances than those generally faced by a United States citizen who committed the same offense." Id. at 793.

(b) to serve a part of the last 10% of his sentence in a community custody program such as a halfway house or home confinement.

The district court concluded that "[e]ven if deportation is reasonable and the disparate treatment is justified, this does not change the fact that for a resident alien who is convicted of a drug-related offense, 'the punishment for a crime is not the same as the one imposed on [a] nonalien who has committed the same act.' " Id. at 785 (quoting S. Rubin, The Law of Criminal Corrections § 15, at 632 (1963)). In Restrepo's circumstances, the court found that a two-step reduction in offense level, "which translates into a sentence up to eight months less than the defendant otherwise would face, plus the forfeiture of his status as a resident alien and deportation," would be appropriate. 802 F.Supp. at 793. Accordingly, seeking "to impose a sentence that [wa]s not 'unreasonably harsh under all the circumstances of the case,' " Id. (quoting S.Rep. No. 225, 98th Cong., 1st Sess. 76 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3259), the district court departed downward two offense levels.

A judgment was eventually entered, sentencing Restrepo principally to 33 months' imprisonment, rather than the 41-51 months prescribed by the Guidelines.

II. DISCUSSION

On appeal, the government contends principally (A) that a defendant's status as an alien cannot serve as the basis for a downward departure, and (B) that if that status can warrant such a departure, the facts did not warrant a departure here. We agree with the latter contention.

A. Whether Alienage May Ever Be Considered

The government argues that the Guidelines themselves expressly forbid consideration of alienage as a basis for departure because they state that a defendant's national origin is not relevant to the determination of a defendant's sentence, see Guidelines § 5H1.10 Policy Statement. We find this argument...

To continue reading

Request your trial
96 cases
  • Hall v. U.S.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • December 1, 1998
    ...to a downward departure on this basis. To the contrary, alien status alone is an inappropriate basis for departure. United States v. Restrepo, 999 F.2d 640, 644 (2d Cir.1993)(finding that while alienage is not "ordinarily relevant" for sentencing purposes, it may be considered when the sent......
  • Tineo v. U.S.
    • United States
    • U.S. District Court — Southern District of New York
    • December 20, 1996
    ...of his alienage are harsher conditions of confinement, such as ineligibility for Bureau of Prisons programs. See United States v. Restrepo, 999 F.2d 640, 644-46 (2d Cir.) (refusing to recognize Bureau of Prisons' denial of reassignment to halfway house based on defendant's deportable alien ......
  • U.S. v. Angel-Martinez, Criminal No. 97-300.
    • United States
    • U.S. District Court — District of New Jersey
    • December 15, 1997
    ...F.3d 1342, 1343 (9th Cir.1996) ("Someone not classified as a deportable alien is eligible for these placements").8 In United States v. Restrepo, 999 F.2d 640 (2d Cir.), cert. denied, 510 U.S. 954, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993), Judge Kearse of the Second Circuit held that an alien's......
  • Tapia-Garcia v. U.S.
    • United States
    • U.S. District Court — Southern District of New York
    • May 24, 1999
    ...to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines."'" United States v. Restrepo, 999 F.2d 640, 643 (2d Cir.), cert. denied, 510 U.S. 954, 114 S.Ct. 405, 126 L.Ed.2d 352 (1993). The Second Circuit has held, however, that "[d]eport......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT