U.S. v. Carrasco, Docket No. 01-1646.

• Decision Date: 20 December 2002
• Docket Number: Docket No. 01-1646.
• Citation: 313 F.3d 750
• Parties: UNITED STATES of America, Appellant, v. Carlos CARRASCO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

313 F.3d 750

UNITED STATES of America, Appellant, v. Carlos CARRASCO, Defendant-Appellee.

Docket No. 01-1646.

United States Court of Appeals, Second Circuit.

Argued: October 15, 2002.

Decided: December 20, 2002.

COPYRIGHT MATERIAL OMITTED

Sara M. Lord, Asst. U.S. Atty., Albany, N.Y. (Joseph A. Pavone, U.S. Atty., Robert P. Storch, Asst. U.S. Atty., Albany, N.Y., on the brief), for Appellant.

Frederick Rench, Clifton Park, N.Y., submitted a brief for Defendant-Appellee.

Before: NEWMAN and POOLER, Circuit Judges, and JONES^*, District Judge.

JON O. NEWMAN, Circuit Judge.

This sentencing appeal requires consideration of the outer limits of a sentencing judge's departure authority under the Sentencing Guidelines. The United States appeals the November 29, 2001, judgment of the District Court for the Northern District of New York (Frederick J. Scullin, Jr., District Judge) imposing a sentence of 26 months on Carlos Carrasco for violating 8 U.S.C. § 1326, which prohibits previously deported aliens from reentering the country without permission from the Attorney General. In sentencing Carrasco, the District Judge justified a downward departure on three grounds: the "lesser harm" provision, see U.S.S.G. § 5K2.11; the "exceptional family circumstances" provision, id. § 5K2.0; and the "overstatement of the seriousness of the offense" provision, see id. § 4A1.3, which authorizes a so-called "horizontal departure" to a lesser Criminal History Category ("CHC"). Although we are mindful of the often broad departure authority of a sentencing judge and of our own limited scope of review, see Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), we conclude that the "lesser harm" and "exceptional family circumstances" grounds are unavailable in this case, and that the CHC reduction, if available at all, would require findings not yet made. We therefore remand for resentencing.

Background

Carrasco, a native and citizen of the Dominican Republic, lawfully entered the United States in September 1992 to join his wife and subsequently obtained legal status. In 1999, he was convicted in a Massachusetts state court of the felony of possessing heroin with intent to sell, and was sentenced to two and a half years in prison. In July 2000, following his release, he was deported to the Dominican Republic because of his conviction.

Two months later, Carrasco attempted to enter the United States illegally at Champlain, New York, as a passenger in a car. After falsely identifying himself under two different names and denying both a criminal record and any problems with the INS, he was correctly identified by the driver of the car. Carrasco was charged with illegal reentry following deportation in violation of 8 U.S.C. § 1326, and pled guilty.

The presentence report ("PSR") recommended that the base offense level of 8 for "unlawfully entering or remaining in the United States," see U.S.S.G. § 2L1.2(a), be increased by 16 levels because Carrasco had been convicted of an "aggravated felony," see U.S.S.G. § 2L1.2(b)(1)(A) (1998).¹ An adjusted offense level of 21 was recommended, presumably because of a three-level reduction for acceptance of responsibility. See id. § 3E1.1. The PSR calculated that Carrasco's prior record placed him in CHC III (after a correction not relevant to this appeal), which resulted in a recommended sentencing range of 46 to 57 months.

At sentencing, Carrasco contended that he had reentered this country with the intention of returning to his native country to care for his three children after visiting his ailing father. Carrasco's wife and their two daughters, as well as a third child of Carrasco's by another woman, all currently live in the Dominican Republic. He had also stated that he had a good relationship with his wife, but he had previously told the U.S. Pretrial Services that he was separated from his wife due to personal problems.

At the sentencing hearing, the District Court, sua sponte, stated that Carrasco's placement in CHC III overstated the seriousness of his prior record and reduced it to CHC II. See U.S.S.G. § 4A1.3. No findings were made to support this reduction. The adjusted offense level of 21 and CHC II resulted in a sentencing range of 41 to 51 months.

Agreeing with arguments in Carrasco's sentencing memorandum, the District Judge made a further departure based both on "lesser harm" and "exceptional family circumstances." Judge Scullin stated:

I do find that there are, under the circumstances of this case, that there are facts and circumstances which are exceptional, taken out of the heartland of cases, for the reasons stated in the defendant's sentencing memorandum both for 5K2.0 [exceptional family circumstances] and 5K2.11 [lesser harm]. The evidence, facts, undisputed facts are clear that this reentry was not for purposes of committing future crimes, even though counsel for the Government advises the Court we shouldn't speculate, I agree with you, we shouldn't speculate that he's going to commit more crimes here. I think the evidence supports the fact that he was not about to come in this country to engage in criminal activity. The criminal activity for which he was deported happened almost more than 10 years ago, so I think under the facts and circumstances here, that motion is appropriate and I'm going to grant it, for both, combination of reasons, both 5K2.0 and 5K2.11.

The Court sentenced Carrasco to 26 months plus a three-year term of supervised release, with the added condition of not reentering the United States again.

Discussion

The Supreme Court has made it clear that a district court's decision to depart from the Guidelines "will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court." Koon, 518 U.S. at 98, 116 S.Ct. 2035 (citation omitted). Both before and after Koon, we have accorded district judges ample discretion in determining both the appropriateness and the extent of a departure. See, e.g., United States v. Karro, 257 F.3d 112, 118-121 (2d Cir.2001) (affirming both direction and degree of the district court's five-level upward departure); United States v. Franklyn, 157 F.3d 90, 97-100 (2d Cir.1998) (affirming each of district judge's three upward departures); United States v. Campbell, 967 F.2d 20, 26 (2d Cir.1992) (appellate courts should review district courts' sentencing departures for "reasonableness"). However, the authority to make a departure must be exercised in conformity with the statutory standard, which specifies that the sentencing judge may depart from an otherwise applicable sentencing range 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), and in accord with the policy statements that the Commission has issued to guide the exercise of departure discretion. In addition, where departure authority is available to be exercised, a district court must identify, with appropriate findings, the circumstance(s) upon which it relied. With these principles in mind, we consider each of the three grounds on which Judge Scullin based his departure.

I. "Lesser Harm" Departure

The Sentencing Commission's policy statement on a "lesser harm" departure explains its two rationales in these terms:

Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government's policies were misdirected.

In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue. For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.

U.S.S.G. § 5K2.11.

Of the two grounds for a "lesser harm" departure — the defendant acted to avoid a greater harm or the defendant's conduct did not cause or threaten the evil to be prevented by the statute that was violated — it is clear from Judge Scullin's sentencing remarks that he relied on the second rationale. However, he did not apply a "lesser harm" departure in the belief that Carrasco's conduct did not cause the harm sought to be prevented by section 1326. Instead, he made a "lesser harm" departure because he thought that Carrasco's conduct did not cause the harm sought to be prevented by the Guidelines' 16-level enhancement applicable to reentering aliens who were deported for committing an aggravated felony. U.S.S.G § 2L1.2. In the Judge's view, that enhancement imposes extra punishment in order to deter only those deported aliens who reenter for the purpose of committing further crimes. In sentencing a similarly situated defendant, Judge Scullin expressed his understanding of section 2L1.2 in these words:

And I think the 16-level enhancement, as [defense counsel] points out, is a Draconian approach to aggravated felons, in particular people who society has to be concerned about, these repeat offenders, coming back in here to continue that conduct or threaten that kind of conduct.

With respect to Carrasco, the Judge found:

The evidence, facts, undisputed facts are clear that this reentry was not for purposes of committing future crimes.... I think the evidence supports the fact that he was not about to come in this country to engage in criminal activity.

Having found that Carrasco had not...