U.S. v. Lopez-Salas, LOPEZ-SALA

• Decision Date: 17 September 2001
• Docket Number: Nos. 00-3935,00-3967,APPELLEE,LOPEZ-SALA,s. 00-3935
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLANT, v. NOLBERTO UNITED STATES OF AMERICA, APPELLANT, v. JESSE V. RAMOS, ALSO KNOWN AS ELEASAR ANDRADE, APPELLEE. Submitted: June, 13, 2001 Filed:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 842

266 F.3d 842 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLANT, v. NOLBERTO LOPEZ-SALAS, APPELLEE.

UNITED STATES OF AMERICA, APPELLANT, v. JESSE V. RAMOS, ALSO KNOWN AS ELEASAR ANDRADE, APPELLEE.

Nos. 00-3935, 00-3967

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June, 13, 2001

Filed: September 17, 2001

Appeals from the United States District Court for the District of Nebraska. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Murphy, Heaney, and Beam, Circuit Judges.

Beam, Circuit Judge.

Appellees were convicted of unrelated drug offenses. Before sentencing, the Immigration and Naturalization Service (INS) filed a detainer against each, indicating they would be deported upon completion of their sentences. The district court departed downward because the appellees would not be eligible to spend the last six months of their sentence in a half-way house, nor would they be eligible for early release upon successful completion of a drug treatment program. The government appeals the departure decision. We reverse.

I. BACKGROUND

Lopez-Salas was born in Mexico. After completing high school and medical training, he entered this country illegally. He was arrested on multiple drug charges and ultimately pled guilty to possession with intent to distribute cocaine and methamphetamine. Following his arrest, the INS filed a detainer designating him as an alien subject to deportation at the end of his prison sentence.

Ramos was also born in Mexico, but his parents brought him to the United States when he was five, and he has lived most of his life in this country. He has previously served prison sentences and has been deported twice. His current conviction is pursuant to a guilty plea on a charge of intent to distribute methamphetamine. Like Lopez-Salas, the INS filed a detainer designating Ramos as an alien subject to deportation at the end of his prison sentence.

At sentencing, the district court received evidence concerning the Bureau of Prison's (BOP) policies toward deportable aliens. Generally, although deportable aliens may participate in most prison programs such as drug treatment or work, they are not eligible for several statutory benefits. Deportable aliens are not eligible for assignment to minimum security facilities, nor for up to one year early release upon completion of a drug treatment program, nor for serving the final ten percent (up to six months) of their sentence in a half-way house or other community confinement. Based on these latter two factors, the district court, in separate sentencing hearings, concluded the appellees were denied benefits solely on the basis of their status as deportable aliens. Finding this effect was not contemplated in the United States Sentencing Guidelines, the court granted a one-year downward departure to both Ramos and Lopez-Salas. Before the departure, Ramos was subject to a guidelines range of 168 to 210 months; Lopez-Salas faced a range of 108-135 months. After the departure they were sentenced to 156 months (thirteen years) and 96 months (eight years) respectively.

II. ANALYSIS

We will reverse a district court's decision to depart downward from the guidelines only for an abuse of discretion. Koon v. United States, 518 U.S. 81, 91 (1996).

When imposing a sentence, a district court is limited to a sentence falling within the range specified by the guidelines if the case is an ordinary one. Id. at 92. In order to preserve some flexibility and discretion for the district court to respond to unique individual circumstances, Congress allows the court to depart if "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 Sentencing Commission intended for each guideline to carve out a "'heartland,' a set of typical cases embodying the conduct that each guideline describes." U.S. Sentencing Guidelines Manual, ch. 1, pt. A(4)(b) (2001) [hereinafter U.S.S.G]. The guidelines specify certain factors that are encouraged or discouraged.¹ See U.S.S.G. §§ 5H, 5K. Other than for crimes related directly to alien status, such as illegal re-entry into the country, the guidelines do not mention the effects of alien status as a departure factor. United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993). If a factor is unmentioned in the guidelines, the court must consider the "structure and theory of both the relevant individual guidelines and the guidelines taken as a whole," to determine whether the factor makes the case unusual or atypical enough to take the case out of the heartland. Koon, 518 U.S. at 96 (quoting United States v. Rivera, 994 F.2d 942, 949 (1st Cir. 1993)). In doing this, the court must be cognizant of the fact that the Commission expected departures based on unmentioned factors would be "highly infrequent." U.S.S.G. Ch. 1., Pt. A(4)(b).

We have not previously considered whether alien status and the collateral consequences flowing from that status justify departure.² The Second Circuit held that although alienage may be a basis for departure in some circumstances, the particular collateral consequences the defendant faced in that case as a result of being a deportable alien (ineligibility for placement in community-confinement for the last six months of his sentence, post-imprisonment detention while awaiting deportation, and deportation itself) could not support a departure. Restrepo, 999 F.2d at 644-47. Several other circuits have followed the rationale of Restrepo. See United States v. Veloza, 83 F.3d 380, 382 (11th Cir. 1996), overruled on other grounds by United States v. Campbell, 181 F.3d 1263 (11th Cir. 1999); United States v. Mendoza-Lopez, 7 F.3d 1483, 1487 (10th Cir. 1993); United States v. Nnanna, 7 F.3d 420, 422 (5th Cir. 1993). To the extent that these cases suggest that factors related to alien status may never be a basis for departure, they are inconsistent with Koon, which made it clear that courts may not declare what sentencing factors are inappropriate in every circumstance. 518 U.S. at 106; see also United States v. DeBeir, 186 F.3d 561, 569 (4th Cir. 1999) (noting that the above cases were all decided prior to Koon, which limits the authority of appellate courts to categorically limit possible departure factors); United States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997) (same).

Three circuits have held that alienage, or the collateral consequences flowing therefrom, may be a basis for departure in some circumstances.³ Farouil, 124 F.3d at 847; United States v. Charry Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996); United States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994). We agree. As a factor unmentioned in the guidelines, alien status and the collateral consequences flowing therefrom may be an appropriate basis for departure.

However, just because an unmentioned factor may be considered for departure, "does not mean that courts have unfettered authority to depart whenever that factor is invoked." United States v. Bautistia, 258 F.3d 602, 606 (7th Cir. 2001). The court must still articulate why that factor is sufficiently atypical to justify a departure. See id. (reversing a downward departure based on consequences surrounding deportation because the defendant-alien's circumstances were not "extraordinary"); Smith, 27 F.3d at 655 (holding that departure based on increased severity in sentence due to alien status is only appropriate if the difference is substantial, undeserved and the court has high degree of confidence that it will apply for substantial part of defendant's sentence). Thus, we must examine the specific collateral consequences flowing from alien status upon which the district court based its departure.

A. Ineligibility for Early Release

The particular question of ineligibility for early release after completing the drug treatment program is one of first impression in any circuit court. In examining how this factor relates to the structure and theory of the guidelines, we must first consider the statutory backdrop against which the guidelines operate. See Charry Cubillos, 91 F.3d at 1345 (remanding case to district court to consider departure decision based on alien status according to structure and theory of guidelines, including why the deportable alien was ineligible for minimum security and community confinement).

The BOP has been directed by Congress to provide appropriate substance abuse treatment for each prisoner it determines has a treatable condition of substance addiction. 18 U.S.C. § 3621. To this end, the BOP must provide residential substance abuse treatment, and make arrangements for appropriate after care. Id. § 3621(e)(1). As an incentive to prisoners convicted of nonviolent offenses, the BOP may reduce their sentence by up to one year when they successfully complete the treatment program. Id. § 3621(e)(2)(B). The BOP possesses substantial discretion in determining who is eligible for early release upon completion of the drug treatment program and how early the release should be. See Lopez v. Davis, 531 U.S. 230 (2001) (upholding a BOP regulation categorically excluding, based upon its general discretion under the statute to grant or deny early release, prisoners convicted of otherwise nonviolent offenses that involved use of a firearm).

Based on the discretion granted it under the statute, the BOP has categorically excluded from early release several groups of inmates who would otherwise be eligible under the statute. Prisoners who have an INS detainer filed against them are only one group. 28 C.F.R. § 550.58(a)(1)(i). The regulation also categorically excludes: pretrial inmates, contractual boarders (such as inmates from the District of Columbia or the military), inmates with prior convictions of certain serious offenses, inmates...