U.S. v. Barajas-Nunez

• Decision Date: 06 August 1996
• Docket Number: No. 95-1643,D,BARAJAS-NUNE,95-1643
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Francisco Javierefendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 826

91 F.3d 826

UNITED STATES of America, Plaintiff-Appellant, v. Francisco Javier BARAJAS-NUNEZ, Defendant-Appellee.

No. 95-1643.

United States Court of Appeals Sixth Circuit.

Argued Dec. 8, 1995.

Decided Aug. 6, 1996.

Julie Ann Woods, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Attorney for W.D. of Mich., Grand Rapids, MI, for U.S.

Wade S. Seys (argued and briefed), Grand Rapids, MI, for Francisco Javier Barajas-Nunez.

Before: BROWN, SILER, and MOORE, Circuit Judges.

MOORE, J., delivered the opinion of the court, in which BROWN, J., joined. SILER, J. (pp. 835-36), delivered a separate opinion concurring in part and dissenting in part.

MOORE, Circuit Judge.

The United States appeals the sentence of Defendant-Appellee Francisco Javier Barajas-Nunez because it asserts that the district court departed downward from the sentencing guidelines based on improper factors. For the reasons that follow, we vacate Barajas-Nunez's sentence and remand the case to the district court for resentencing.

I. Background

In August 1994, Barajas-Nunez was deported from the United States after being convicted of distributing marijuana, an aggravated felony. In September 1994, Barajas-Nunez illegally returned to the United States, allegedly to assist his girlfriend. His girlfriend was pregnant with his child, required surgery, and, according to Barajas-Nunez, did not have anyone else to assist her. Before his deportation, Barajas-Nunez had resided with his girlfriend, with whom he had one other child. In November 1994, Barajas-Nunez was arrested at his girlfriend's residence in Michigan.

Barajas-Nunez was indicted for and pleaded guilty to being found in the United States after an illegal reentry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). The sentencing guidelines provided that Barajas-Nunez should be sentenced to 57 to 71 months of imprisonment. The presentence report ("PSR") stated that the probation office possessed no information that would justify a departure from the sentencing guidelines. Through counsel, Barajas-Nunez submitted minor factual objections to the PSR, but he did not make a written motion for a downward departure.

At the May 1995 sentencing hearing, the district court asked for comment from the government's attorney, who responded that the government concurred in the sentencing recommendation made by the probation department in the PSR. The court then asked for comment from Barajas-Nunez's counsel, who requested that "... in the interests of justice that this court depart to a lower sentence." The government did not object. The district court then conducted the required allocution of the defendant, who described the circumstances of his illegal reentry and indicated that he returned to the United States to assist his pregnant girlfriend and "to be responsible for my children." The district court then imposed sentence as follows:

The Court is of the opinion that I should not ... impose a 57 months sentence on this defendant. This defendant did not commit any crimes except for illegal reentry, and he is going to be deported. I am not naive enough to believe that once he is deported he won't come back again, but neither do I believe that the government of the United States would be well served by supporting a man in prison for four and one-half years who did nothing more than come back to see his children and to assist in the birth of another child. That is just beyond me to do.

The Court makes a finding that it should depart under the 5K series, 5K2 series of the guidelines manual, specifically, 5K2.0, 5K2.11, and 5K2.13. There are cases and instances the Court believes, as described in the policy statement of 5K2.0, that would warrant departure, but cannot be comprehensively listed and analyzed in advance by the Sentencing Commission. The Court is of the opinion that the controlling decision as to whether and to what extent such departure is warranted can only be made by the Court; and I am one of said Court, and I am literally reading from 5K2.0.

In addition to that, the Court believes that 5K2.11 is impacted. It indicates to the Court and to the readers of the guidelines that sometimes the defendant may commit a crime in order to avoid a perceived greater harm. In this instance, the Court finds as a factual matter that the defendant perceived that his woman was in grave danger of physical harm, and that as a father he was responsible for making certain that she received medical care. In that kind of an instance, I think that, and so find, a reduced sentence may be appropriate--because I believe the circumstances diminish society's interest in punishing his conduct in this case.

I also believe that 5K2.13, a policy statement about diminished capacity, is impacted to some degree at least. This defendant has a total of one year of education. With one year of education and no ability to speak English, one cannot expect him to understand and to act the same way a more rationally educated person would react. In addition to that, he has a bullet in his body which was caused by his being robbed and he is in pain. He has been asking for medication for his pain from the county jail, but he has not received any. It strikes me that given the level of his education and his reaction to his woman's illness have diminished to some degree at least his capacity to appreciate what he should or could do with regard to the law. ¹

Thus, the district court departed from § 2L1.2, the applicable provision of the sentencing guidelines that applies only to those who unlawfully enter or remain in the United States, and imposed a sentence of eight months of imprisonment and two years of supervised release. After the district judge imposed sentence, he asked the government's attorney, "Is there anything else the Court should do in this case, Ms. Wood?" The government's attorney answered, "No, Your Honor, thank you." On June 2, 1995, the government filed a notice of appeal. Barajas-Nunez was deported to Mexico in August 1995, but he was rearrested in Michigan in January 1996, for new violations of 8 U.S.C. §§ 1326(a) and 1326(b)(2).

II. Mootness

Barajas-Nunez's counsel represented in his brief that Barajas-Nunez completed his sentence and was deported in August 1995. Although the parties did not raise this issue, the completion of the sentence and the deportation present a mootness question that we should address.

A government appeal of a downward departure is not mooted by the defendant's completion of his sentence and subsequent deportation. See United States v. Valdez-Gonzalez, 957 F.2d 643, 646-47 (9th Cir.1992). The Ninth Circuit held that when the defendant's sentence includes supervised release, which could be converted into incarceration time if the defendant is rearrested in the United States, the government's appeal of the defendant's sentence is not moot. Id.

The Ninth Circuit based its holding on the Supreme Court's decision in United States v. Villamonte-Marquez, 462 U.S. 579, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). In that case, the Court held that the defendant's deportation did not moot the government's appeal to the Supreme Court, in which the government sought to reinstate convictions that had been reversed by the court of appeals. The Court stated that the possibility of arrest and imprisonment for the reinstated convictions if the defendants reentered the United States was sufficient to keep the appeal from being moot. Id. at 581 n. 2, 103 S.Ct. at 2575 n. 2.

Likewise, the government's appeal here is not moot. Barajas-Nunez's sentence included two years of supervised release, which would expire in August 1997. If Barajas-Nunez returned to the United States, as he apparently has, he could be incarcerated, as he was, or otherwise supervised by U.S. authorities pursuant to his supervised release conditions. Therefore, the government's challenge to his sentence is not moot and may be considered by this court.

III. Forfeiture of Objections To Sentence

Barajas-Nunez argues that the government waived any error in the sentence by failing to object to the downward departure at sentencing. The government argues that the district court failed to give the government proper notice of its intent to depart.

The PSR in this case clearly did not provide the government with notice of a possible downward departure, and Barajas-Nunez's counsel did not object in advance to the PSR recommendations regarding departures. However, Barajas-Nunez's counsel did request a departure at the sentencing hearing itself. Rule 32(b)(6)(D) of the Federal Rules of Criminal Procedure permitted the district court, for good cause shown, to consider an objection raised at any time before sentence was imposed. Although the district court did not make an express finding of good cause, its comments and actions after Barajas-Nunez's allocution indicate that it found such good cause to be present. ² The government did not raise any objection in the district court to this alleged lack of notice.

Even if the government did not receive advance notice, its failure to object to the merits of the departure cannot be excused because the government failed to give the district court any inkling that it disagreed with the departure. The government not only failed to object when the defendant requested a downward departure, but also failed to object when the district court gave it an opportunity to comment after sentence was imposed. The government had an opportunity to object when the district judge asked if there was anything else he should do with regard to the sentence. See United States v. Filker, 972 F.2d 240, 242 (8th Cir.1992) (government had opportunity to object when court asked if there were "any other matters to be considered"). The government's previous statement to the district court that it concurred in the recommendations contained in the PSR was not a sufficient objection to preserve the sentencing issue for...