U.S. v. Garay
| Decision Date | 07 December 2000 |
| Docket Number | No. 00-40048,00-40048 |
| Citation | 235 F.3d 230 |
| Parties | (5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RODOLFO ANTONIO GARAY, also known as Rodolfo Foskin Defendant-Appellant |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court For the Southern District of Texas
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
Defendant-Appellant Rodolfo Antonio Garay ("Garay") challenges the sentence imposed by the district court after his conviction for being an alien unlawfully found in the United States following deportation, in violation of 8 U.S.C. § 1326(a) and 1326(b). The district court denied Garay's request for a downward departure from the Sentencing Guidelines on the ground that Garay's status as a deportable alien did not constitute a basis for departure. Agreeing with the district court that alienage is not a basis for downward departure in this immigration case, we affirm.
Garay was convicted following a bench trial for being an alien unlawfully found in the United States after deportation.1 In his objections to the presentence investigation report, Garay urged the district court to depart downward from the Sentencing Guidelines because "he is an alien and will be deported." Garay also contended that he merited a downward departure because as an alien, he would face more severe conditions of incarceration because of his ineligibility for Bureau of Prisons programs such as drug and alcohol treatment, prison camp, and release to a halfway house.
Garay pressed his request for downward departure again at the sentencing hearing. The district court denied the request, stating that there was nothing atypical about Garay's case that would take it outside the "heartland" of immigration cases to which the guideline applied.2 When counsel for Garay inquired as to whether Garay's request was denied "on the basis that alienage does not constitute a probable basis for downward departure," the district court answered in the affirmative. The district court proceeded to sentence Garay to 70 months of imprisonment,3 together with a three-year term of supervised release and a $100 special assessment. Garay timely appeals the sentence imposed by the district court, and asks us to vacate his sentence and remand for resentencing.
A defendant's general dissatisfaction with his sentencing range provides no ground for review of a district court's refusal to grant a downward departure.4 We have jurisdiction only if the refusal was in violation of the law.5 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.6 We review a district court's decision not to depart from the Guidelines for abuse of discretion.7
Garay contends that his sentence must be vacated because the district court erroneously believed that it lacked authority to depart downward on the basis of his status as a deportable alien.8 He concedes that this argument is foreclosed by our decision in United States v. Nnanna,9 in which we held that, in the case of a deportable alien convicted of bank fraud, "[c]ollateral consequences, such as the likelihood of deportation or ineligibility for more lenient conditions of imprisonment, that an alien may incur following a federal conviction are not a basis for downward departure."10 Garay argues, however, that Nnanna must be reconsidered in light of the Supreme Court's subsequent decision in Koon v. United States,11 which held that federal courts can no longer categorically proscribe a basis for departure unless the Guidelines have explicitly forbidden consideration of that factor.12
Consequently, Garay maintains that in light of Koon, our decision in Nnanna, which categorically proscribed alienage and its attendant consequences as a basis for downward departure, is no longer good law. Garay does not argue that his case is "atypical" or that the district court's refusal to depart downward was otherwise in violation of the law. Rather, he argues that his sentence should be vacated and remanded for reconsideration in light of Koon's directive that any factor not mentioned in the Guidelines can serve as a potential basis for departure.
Garay relies on decisions from other circuits in asserting that Koon requires us to instruct the district court to consider his alienage as a basis for downward departure on remand.13 But these cases, which involved aliens convicted of crimes other than immigration offenses,14 are clearly distinguishable from the instant case, in which Garay's status as a deportable alien, as an inherent element of his crime, has already been considered by the Commission in formulating the applicable guideline.15
For example, in Farouil, the Seventh Circuit concluded that alienage could serve as a basis for departure in Farouil's drug case, but nevertheless affirmed its decision one week earlier in United States v. Gonzalez-Portillo16 that alienage is not a basis for departure in § 1326 cases.17 In Gonzalez-Portillo, the Seventh Circuit reasoned that because deportable alien status is an element of the crime to which the guideline applies, alienage was necessarily "taken into consideration by the Sentencing Commission in formulating the guideline."18 The Seventh Circuit concluded that even under Koon, "a factor that may otherwise justify a departure will not do so when, as here, it is already accounted for in the applicable guideline."19
The Government, adjudging the rationale in Gonzalez-Portillo to be sound, urges us to follow the Sixth, Seventh, and Ninth Circuits in deeming alienage an impermissible basis for departure when, as here, status as a deportable alien has necessarily been taken into account by the Sentencing Commission in establishing the offense level for the crime. We agree and hold that Garay's status as a deportable alien, as an element of the crime for which he was sentenced, is not an "aggravating or mitigating circumstance of a kind or degree not adequately taken into consideration by the Commission"20 and therefore is not a permissible basis for downward departure in this immigration case.
1. See 8 U.S.C. § 1326(a) and 1326(b).
2. The Guidelines explain that See 1995 U.S.S.G. ch. 1, pt. 1, intro. comment. 4(b).
3. Garay's prison term was at the low end of the applicable Sentencing Guidelines range of 70-87 months.
5. Id.
8. A district court may depart from the applicable Sentencing
Guideline range only if "the court finds that 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 that should result in a sentence different from that described." 18 U.S.C. § 3553(b). The Guidelines enumerate certain factors that can never be bases for departure, such as race and religion, but do not otherwise limit, as a categorical matter, potential bases for departures. See Koon, 518 U.S. at 94; see also 1995 U.S.S.G. § 5H10 ().
If a basis for departure, such as alienage, is not mentioned in the Guidelines, a district court must, "after considering the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole, decide whether it is sufficient to take the case out of the Guideline's heartland." See Koon, 518 U.S. at 94 (quotations and citation omitted). The Commission has advised that departures based on grounds not mentioned in the Guidelines will be "highly infrequent." See 1995 U.S.S.G. ch. 1, pt. A, p.6.
10. Id. at 422.
11. 518 U.S. 81 (1996).
12. Id. at 109 (1996).
13. Se...
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