U.S. v. Martinez-Alvarez, 02-CR-223.

• Decision Date: 14 April 2003
• Docket Number: No. 02-CR-223.,02-CR-223.
• Parties: UNITED STATES of America, Plaintiff, v. Ruben MARTINEZ-ALVAREZ, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

256 F.Supp.2d 917

UNITED STATES of America, Plaintiff, v. Ruben MARTINEZ-ALVAREZ, Defendant.

No. 02-CR-223.

United States District Court, E.D. Wisconsin.

April 14, 2003.

Carol Kraft, Milwaukee, WI, for Plaintiff.

Brian Mullins, Madison, WI, for Defendant.

DECISION AND ORDER

ADELMAN, District Judge.

Defendant Ruben Martinez-Alvarez was charged with unlawful re-entry into the United States following deportation. He pled guilty to the charge, and a pre-sentence report (PSR) was prepared in anticipation of sentencing. Defendant's offense level was determined to be 21 and his criminal history category IV, producing an imprisonment range of 57-71 months.

There are no objections to the guideline determinations in the PSR, but defendant moves for a downward departure pursuant to U.S.S.G. § 5K2.0 because his "cultural assimilation" to the United States decreased his culpability for unlawfully reentering. In this decision I consider the motion.

I.

The court may "depart from the applicable Guideline range 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.'" Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting 18 U.S.C. § 3553(b)). The Commission has provided guidance in making departure decisions by listing certain factors that are "forbidden" bases for departure, "encouraged" bases for departure, and "discouraged" bases for departure. Id. at 93-95, 116 S.Ct. 2035

The Supreme Court has thus adopted the following test for determining whether to depart. First, what factors of the case make it special or unusual? Second, has the Commission forbidden departures based on those factors? If not, has the Commission encouraged departures based on those factors? If not, has the Commission discouraged departures based on those factors? Id. at 95, 116 S.Ct. 2035.

If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. If a factor is unmentioned in the Guidelines, the 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.

Id. at 95-96, 116 S.Ct. 2035 (citations and internal quote marks omitted).

II.

A.

The special factor that potentially takes this case out of the heartland is defendant's "cultural assimilation" to the United States. Defendant contends that he is not the typical unlawful re-entry defendant, who returns to the United States for purely economic reasons, or, worse yet, to commit further crimes. Rather, he indicates that he was motivated to re-enter because he has spent virtually all of his life in this country and most of his family live here. Therefore, he contends, he is less culpable than the usual re-entry offender. The courts have generally found that cultural assimilation can be a viable basis on which to grant a downward departure. E.g., United States v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir.2001); United States v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir.1998); United States v. Lipman, 133 F.3d 726 (9th Cir.1998).¹

It is important to first distinguish this basis for departure from two related bases—family and community ties, and deportable alien status. The courts have found that a defendant's unusual family circumstances can form the basis for a departure. E.g., United States v. Canoy, 38 F.3d 893 (7th Cir.1994); United States v. Norton, 218 F.Supp.2d 1014 (E.D.Wis. 2002); see also U.S.S.G. § 5H1.6. In those cases, courts typically depart in order to mitigate the collateral effects of the sentence on the defendant's family. The departure is not granted because defendants who have families are less culpable than those who do not; rather, the court reduces the sentence so that the defendant can maintain his or her vital role within the family.

Courts have also held that a downward departure may be granted based on the defendant's status as a deportable alien. E.g., United States v. Farouil, 124 F.3d 838 (7th Cir.1997).² Departures may be granted on this basis if the defendant can show that his conditions of confinement will be substantially more onerous because of his deportable status, or if he can show that his individual circumstances make deportation extraordinarily harsh for him, as, for example, where he will be sent to a country he does not know and/or will be separated from his family and friends. United States v. Ferreria, 239 F.Supp.2d 849, 853 (E.D.Wis.2002). Again, this type of departure, under either theory, does not reflect a determination that a defendant faced with deportation following his sentence is somehow less blameworthy than a citizen; rather, the court acts to ameliorate some of the harshness peculiar to the defendant's status as an alien, harshness a citizen will not face.

Departures based on cultural assimilation are unlike either of these. Although the defendant will be a "deportable alien," and the factual predicate for his claim will likely include references to his family ties, this ground for departure is directly tied to the defendant's culpability for the offense of conviction. This is so because the defendant worthy of such a departure will have been motivated to re-enter because he wishes to be with his family in the United States and has otherwise been "assimilated" into this country. As the Ninth Circuit stated in Lipman:

[C]ultural assimilation is distinguishable from the threat of future deportation because a defendant's cultural assimilation may speak to his offense and to his character. Recognizing cultural assimilation as a factor that may justify departure therefore would not result in the arbitrary dividing line between all aliens and all citizens that we [have] rejected .... For example, cultural assimilation may be relevant to sentencing under U.S.S.G. § 2L1.2 if a district court finds that a defendant's unusual cultural ties to the United States—rather than ordinary economic incentives—provided the motivation for the defendant's illegal reentry or continued presence in the United States. Cultural assimilation may also be relevant to the character of a defendant sentenced under U.S.S.G. § 2L1.2 insofar as his culpability might be lessened if his motives were familial or cultural rather than economic. Thus, unlike the general threat of deportation, cultural assimilation is a fact-specific ground for departure that may speak to an individual defendant's offense, his conduct and his character, and not just to possible future events unrelated to the defendant's individual circumstances.

133 F.3d at 731.

B.

Because cultural assimilation is a factor unmentioned in the guidelines, a defendant seeking a departure on this basis must show that his motivation in re-entering the United States takes his case out of the heartland of typical re-entry cases. Of course, the court need not accept the defendant's bald claim that he broke the law because he wanted to be with his family in the United States. Rather, the court should look to certain, more objective factors.

First, the court should consider the length of time the defendant lived in the United States. Obviously, a person who has lived here most of his life is more likely to have been assimilated (and thus motivated to re-enter) than one who has resided in this country for just a few months or years. Similarly, the court can consider whether the defendant was educated in American schools, which would advance his assimilation. The court can also consider the defendant's residency status at the time of deportation. Was he a lawful permanent resident? Had he taken steps toward becoming a citizen? Also relevant are the circumstances of the defendant's initial entry into the United States. Was he brought here as a child by his parents, or did he enter on his own initiative as an adult? These considerations bear on the degree of assimilation.

Second, the court should analyze the defendant's level of familiarity with his country of origin. Has he lived there for any appreciable period of time, particularly as an adult? Does he speak the language? Has he ever worked there? A defendant deported to a country his does not know will have a greater motivation to leave than one deported to a more familiar environment.

Third, the court should consider the defendant's family ties. Do all or most of his family live in the United States? Does he have a spouse or minor children here, and are those children United States citizens? The desire to be with one's children can be a strong motivation to re-enter unlawfully.

Finally, the court should analyze what the defendant did and where he went upon re-entry. Did he immediately return to his family, or did he take a detour into other endeavors? In Lipman, for example, the defendant claimed that he re-entered to be with his daughter in New York, yet was arrested for possession with intent to distribute marijuana in Los Angeles. Id. at 728-29.

By analyzing all of these factors, the court can determine the degree of the defendant's assimilation and the sincerity of his professed motivation in re-entering the country unlawfully. With these factors in mind I turn to the present case.

III.

A.

Defendant was born in Mexico in 1977 and came to the United States with his moth...