U.S. v. Clase-Espinal

• Citation: 115 F.3d 1054
• Decision Date: 04 November 1996
• Docket Number: D,No. 96-1881,CLASE-ESPINA,96-1881
• Parties: UNITED STATES of America, Appellee, v. Gerardoefendant, Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1054

115 F.3d 1054

UNITED STATES of America, Appellee, v. Gerardo CLASE-ESPINAL, Defendant, Appellant.

No. 96-1881.

United States Court of Appeals First Circuit.

Heard Nov. 4, 1996.

Decided June 19, 1997.

Owen S. Walker, Boston, MA, with whom Federal Defender Office was on brief, for appellant.

Donald L. Cabell, Assistant United States Attorney, Boston, MA, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before SELYA, CYR and LYNCH, Circuit Judges.

CYR, Circuit Judge.

Gerardo Clase Espinal ("Clase") appeals the sentence imposed upon him for unlawful reentry following deportation. See 8 U.S.C. § 1326(a). The appeal centers upon a novel government motion for downward departure under U.S.S.G. § 5K2.0, which the district court rejected. We affirm.

I BACKGROUND

A citizen of the Dominican Republic, Clase was first deported from the United States on February 4, 1994, following a felony conviction in a Texas state court for cocaine possession. On October 23, 1995, he was arrested in the United States again, and charged with unlawful reentry subsequent to an aggravated felony conviction. See 8 U.S.C. § 1326(b)(2) (1995). After Clase entered a guilty plea, the government agreed to recommend a downward departure under U.S.S.G. § 5K2.0 in return for a stipulation of alienage and deportability following his release from prison, as well as waivers of any deportation hearing and any appeal from the deportation order.

At sentencing, after Clase represented that he would so stipulate, the government recommended a two-level downward departure on the ground that the stipulation constituted conduct not contemplated by the Sentencing Guidelines (or "Guidelines"). See generally U.S.S.G. § 5K2.0. After rejecting the requested section 5K2.0 departure as beyond its power, the district court increased the base offense level ("BOL") from eight to twenty-four, pursuant to U.S.S.G. § 2L1.2(b)(2) (1995), on the ground that the 1994 deportation had followed a conviction for an aggravated felony.

II DISCUSSION

Clase appeals the resulting forty-six month prison sentence, challenging both the sixteen-level enhancement imposed pursuant to U.S.S.G. § 2L1.2(b)(2) and the district court ruling that it lacked authority to depart under U.S.S.G. § 5K2.0. The government supports the section 2L1.2(b)(2) enhancement, but joins Clase in opposition to the district court ruling denying a section 5K2.0 departure.

A. "Aggravated Felony" Enhancement ( U.S.S.G. § 2L1.2(b)(2) )

The prior state conviction was ruled an "aggravated felony," for section 2L1.2(b)(2) purposes, because cocaine possession is a felony under Texas law, see Tex. Health & Safety Code Ann. § 481.115(f) (1996), and accordingly violates the Federal Controlled Substances Act, 21 U.S.C. § 801 et. seq. Section 2L1.2(b)(2), comment. (n.7), defines "aggravated felony" as, inter alia, "any drug trafficking crime ... defined in 18 U.S.C. § 924(c)(2)." Section 924(c)(2) defines "drug trafficking crime" as, inter alia, "any Clase acknowledges that our recent decision in United States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir.1996), forecloses the present claim, but urges nonetheless that the term "felony," as used in 18 U.S.C. § 924(c)(2), encompasses only offenses which would constitute felonies under federal law. As Restrepo-Aguilar directly controls, and Clase offers no tenable basis for disregarding stare decisis, we decline to revisit the matter. See, e.g., Williams v. Ashland Eng'g Co., Inc., 45 F.3d 588, 592 (1st Cir.) (noting that First Circuit panels generally are bound by a prior panel decision directly on point), cert. denied, --- U.S. ----, 116 S.Ct. 51, 133 L.Ed.2d 16 (1995).

felony punishable under the Controlled Substances Act." ¹

B. Downward Departure Under U.S.S.G. § 5K2.0 ²

On April 28, 1995, the Attorney General of the United States disseminated a memorandum ("the Memorandum") authorizing United States Attorneys to recommend a departure below the applicable guideline sentencing range in return for an admission of alienage and deportability, as well as waivers of any administrative deportation hearing and any judicial appeal from the resulting deportation order. The Memorandum indicates that a downward departure based on such cooperative conduct on the part of alien criminal defendants is permissible because it is a ("mitigating circumstance of a kind, or ... degree, not adequately taken into consideration by the Sentencing Commission....").

The United States Attorney for the District of Massachusetts accordingly recommended a two-level downward departure under section 5K2.0 based on the agreement by Clase to stipulate to deportation and waive any related appeal. The district court rejected the recommendation.

I am not satisfied that there are grounds within Section 5K2.0 to permit departure based upon ... a representation [that Clase would stipulate to deportation, etc.]. I make that determination as a matter of law. If I have such power, then I need to be instructed that I do by another court.... [U]pon my own independent determination, I find the use of Section 5K2.0 to permit a downward departure on the basis of the concession of deportability and an agreement not to contest it is not a matter that was left unconsidered by the Sentencing Commission. Certainly, the specific factual circumstances were not considered by the Sentencing Commission, but the larger issue of deportation and the mechanisms for deportation, agreements to ameliorate the difficulties that are administrative burdens for the government, are matters within the scope of the "heartland" calculations of the Sentencing Commission, generally, and in connection with deportation.

I view the Attorney General's willingness, in certain circumstances, to agree to such a downward departure to be in the form of a shadow sentencing guideline, unauthorized by relevant law [,] which allocates responsibilities in this area and [is] not entitled to any particular weight. (Emphasis added.) ³

As posed by the parties and addressed by the district court, therefore, the question before us turns upon an abstract legal principle: whether the stipulation and waiver relating to alienage and deportability permit a section 5K2.0 departure based on the conclusory departure rationale propounded in the Memorandum.

The government and the defendant insist on appeal that the stipulation and waiver relating to alienage and deportability remove the case from the "heartland." See United States v. Rivera, 994 F.2d 942, 947 (1st Cir.1993) (Breyer, C.J.). We agree that the proffered departure ground is not expressly forbidden, discouraged, or encouraged by the Sentencing Guidelines. See Koon v. United States, --- U.S. ----, ----, 116 S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996) (quoting Rivera, 994 F.2d at 949); see also U.S.S.G. §§ 5H1.1--5H1.12; 5K2.1--5K2.18. Yet we agree with the district court that it is insufficient, as a matter of law, to warrant a downward departure.

The sentencing court may resort for decisional assistance to 28 U.S.C. §§ 991-998 (i.e., the Sentencing Commission enabling act itself), 18 U.S.C. § 3553, the Guidelines, including the policy statements and official commentary, as well as to relevant case law. Moreover, courts must bear in mind the expert Sentencing Commission ("Commission") assessment that departures based on judicial determinations that a proffered ground for departure was not adequately considered by the Commission are to be regarded as "highly infrequent." See U.S.S.G. Ch. 1, pt. A, intro. comment. 4(b); see also Koon, --- U.S. at ----, 116 S.Ct. at 2045. Absent a guideline or commentary directly addressing a proffered ground for departure, therefore, sentencing courts must examine the "structure and theory of [the] relevant individual guidelines and the Guidelines taken as a whole," with a view to whether the proffered ground makes the case sufficiently atypical to remove it from the "heartland." Koon, --- U.S. at ----, 116 S.Ct. at 2045 (quoting Rivera, 994 F.2d at 949).

1. Whether Stipulated Deportation Constitutes a Mitigating Circumstance "of a kind" Not Contemplated by the Sentencing Commission?

An aggravating or mitigating circumstance falls within the "heartland" unless it is "of a kind" not adequately considered by the Commission or "present to a degree" neither readily envisioned nor often seen in connection with such an offender or offense of conviction. See 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0; United States v. Sklar, 920 F.2d 107, 115 (1st Cir.1990). We are loath to presume, as a general matter, that the Commission either overlooked or inadequately considered the statutory and regulatory structures upon which an informed sentencing treatment of immigration offenses significantly depended. See, e.g., U.S.S.G. § 2L1.2 comment. (citing to 8 U.S.C. § 1326); id. comment. (n.4) (describing 16-level enhancement for alien previously deported after conviction for aggravated felony). Rather, given its mandate, see 28 U.S.C. § 994, as well as its institutional expertise and experience, see id. § 995, we think it is quite clear that the Commission would have considered that an alien defendant, particularly one convicted of unlawful reentry subsequent to deportation for an aggravated felony, almost certainly would be deported again. See 8 U.S.C. §§ 1251(a)(1)(B) (alien who has entered without inspection), § 1251(a)(2)(A)(iii) (alien convicted of aggravated felony after admission) (1996) (amended sections presently codified at 8 U.S.C. § 1227 (1997)).

Furthermore, we believe it would be farfetched to suppose that the Commission overlooked the central reality that in all likelihood deportation would occur by normal operation of law as a matter of course--irrespective of the alien defendant's consent--following a conviction for illegal reentry subsequent to deportation for an aggravated Similarly, the facilitative nature of stipulated...