U.S. v. Rivas-Gonzalez, 03-30167.

• Decision Date: 22 April 2004
• Docket Number: No. 03-30167.,03-30167.
• Citation: 384 F.3d 1034
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Ernesto RIVAS-GONZALEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.3d 1034 UNITED STATES of America, Plaintiff-Appellant,
v.
Ernesto RIVAS-GONZALEZ, Defendant-Appellee. No. 03-30167. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 3, 2003. Filed April 22, 2004. Amended September 27, 2004.

Page 1035

COPYRIGHT MATERIAL OMITTED

Page 1036

William Mercer (argued), United States Attorney, Billings, Montana, for the plaintiff-appellant.

Melissa Harrison (argued), Assistant Federal Defender, David Avery, Research Attorney, Federal Defenders of Montana, Missoula, Montana, for the defendant-appellee.

Appeal from the United States District Court for the District of Montana; Donald W. Molloy, District Judge, Presiding. D.C. No. CR-02-00011-DWM.

Before: KLEINFELD, GOULD, and TALLMAN, Circuit Judges.

ORDER

The Opinion filed April 22, 2004, and found at 365 F.3d 806, is hereby amended as follows:

(1) We delete the last paragraph reading:

Having concluded that the district court erred when it departed downward based on cultural assimilation, we do not reach or address the district court's second ground for departure, based on family ties, and we express no view on whether and to what extent the departure might properly have been made on that ground. We do not address this issue because we cannot divine whether the district court would have departed and how it would have fashioned Rivas's reduced sentence absent the district court's erroneous reliance on cultural assimilation. It is for the district court in the first instance to decide whether and to what extent Rivas was entitled to a downward departure based solely on family ties. We REVERSE and REMAND to allow the district court to re-sentence Rivas, if and when it may become appropriate,⁴ consistent with this opinion.

(2) We add the following paragraph in its place at the end of the Opinion:

Having concluded that the district court erred when it departed downward on the ground of cultural assimilation, we do not reach or address the district court's second ground for departure, based on family ties. The record is not sufficiently developed for us to conclude that the district court's departure could be sustained on that ground, and we express no view in that regard. On the record as it now stands, however, we conclude that Rivas's reduced sentence is "too low" within the meaning of 18 U.S.C. § 3742(f)(2)(B), and we accordingly REVERSE and REMAND to allow the district court to determine whether and to what extent Rivas is entitled to a downward departure based solely on family ties, and to re-sentence Rivas, if and when it may become appropriate,4 consistent with this opinion.

The text of footnote 4 states, as prior footnote 4 stated, before this amendment, "We express no opinion about whether Rivas, who has been deported, may be re-sentenced in absentia."

The parties previously have not filed any petition for rehearing or petition for rehearing en banc. A sua sponte en banc call was made by a judge on this Court, and a majority of active judges did not vote for en banc review. The parties may, within twenty-one days of the filing of this order, file a petition for rehearing or rehearing en banc solely with regard to the substantive amendment above.

IT IS SO ORDERED.

PREGERSON, Circuit Judge, with whom Judges REINHARDT and THOMAS join, and with whom Judge WARDLAW also joins but for the reasons stated in her separate concurrence, dissenting from the court's denial of

Page 1037

rehearing en banc:¹

I respectfully dissent from the order denying rehearing en banc. The panel's decision in this case conflicts with the Sentencing Guidelines, the Supreme Court's pronouncements in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and the law of our circuit.

This case is about whether the district court had discretion to consider the cultural ties that Defendant Ernesto Rivas-Gonzalez ("Rivas") developed after his illegal reentry and which might mitigate his continued illegal presence in this country. We had already answered that question in United States v. Lipman, 133 F.3d 726 (9th Cir.1998), when we explained that a § 5K2.0 downward departure in an 8 U.S.C. § 1326(a) illegal reentry case may be appropriate "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." Id. at 731 (emphasis added). Of course, the panel in this case thought otherwise. The panel opinion expresses what appears to be disdain for Lipman's recognition that a cultural assimilation downward departure may be appropriate in such a case, calling it "unpersuasive dictum." United States v. Rivas-Gonzalez, 365 F.3d 806, 812 (9th Cir.2004).

Whether the panel is correct that Lipman's recognition of the availability of post-illegal reentry cultural assimilation was "dictum," labeling it as such cannot mask the panel's error of law. Even if one accepts that the panel in this case was not bound by Lipman, the restrictions that the panel imposes on a district court's discretion to depart downward in illegal reentry cases are unwarranted, unwise, and most importantly, contrary to binding precedent.

"Sentencing is a case-by-case matter." United States v. Defterios, 343 F.3d 1020, 1023 (9th Cir.2003) (citations omitted). "Under U.S.S.G. § 5K2.0 and its implementing statute, a departure is appropriate 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.'" Lipman, 133 F.3d at 729-30 (citing 18 U.S.C. § 3553(b)).

In determining whether a departure is warranted under U.S.S.G. § 5K2.0, a sentencing court "may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law." U.S.S.G. § 1B1.4. Except for those factors categorically proscribed by the Sentencing Commission as a basis for departure, e.g., race, sex, and national origin, the Guidelines "`place essentially no limit on the number of potential factors that may warrant departure.'" [United States v.] Mendoza, 121 F.3d [510,] 513 [(9th Cir.1997)] (quoting Koon [v. United States], 518 U.S. [81, 106, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)]). If a factor has not been categorically excluded by the Sentencing Commission, a sentencing court has no authority to decide to exclude it as a matter of law.

Id. at 730.

The panel's holding that a district court may never depart downwardly on the basis of an illegal reentrant's cultural assimilation — however strong — that takes place after an individual's illegal reentry, see Rivas-Gonzalez, 365 F.3d at 812, stands in

Page 1038

stark contrast to the Supreme Court's binding statements in Koon and our court's binding statements in Koon's progeny. Under those precedents, we may not create a rule that prohibits a district court from ever considering a request for a certain downward departure, such as the § 5K2.0 cultural assimilation departure at issue in this case, on a categorical basis. Rather, our job requires us to trust that a district court will properly evaluate a particular defendant's request for a downward departure and determine whether the evidence he or she presents makes the case "unusual enough for it to fall outside the heartland of cases in the [applicable] Guideline." Koon, 518 U.S. at 98, 116 S.Ct. 2035. Of course, we are free to reverse that case-specific determination on appeal, see 18 U.S.C. § 3742(e), but our task, like the district court's, is to evaluate the case on a case-by-case basis, see, e.g., Defterios, 343 F.3d at 1023.

Nor is the panel correct that recognition of a downward departure on the basis of post-reentry cultural assimilation rewards the reentrant for "enjoy[ing] an extended illegal sojourn — which resulted in the corresponding creation of cultural and community bonds." Rivas-Gonzalez, 365 F.3d at 812. While the conventional wisdom is that unauthorized immigrants will always remain in this country once they have...