U.S. v. Sanchez-Rodriguez

• Decision Date: 20 November 1998
• Docket Number: SANCHEZ-RODRIGUE,D,No. 97-10238,97-10238
• Citation: 161 F.3d 556
• Parties: 98 Daily Journal D.A.R. 11,861 UNITED STATES of America, Plaintiff-Appellant, v. Miguelefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 556

161 F.3d 556

98 Daily Journal D.A.R. 11,861

UNITED STATES of America, Plaintiff-Appellant, v. Miguel SANCHEZ-RODRIGUEZ, Defendant-Appellee.

No. 97-10238.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted En Banc July 23, 1998.

Decided Nov. 20, 1998.

Robin L. Harris, Assistant United States Attorney, San Francisco, California, for the plaintiff-appellant.

Barry J. Portman, Federal Public Defender, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California; Susan Y. Illston, District Judge, Presiding. D.C. No. CR-96-00395-SI.

Before: HUG, Chief Judge, BROWNING, SCHROEDER, FLETCHER, REINHARDT, BRUNETTI, THOMPSON, O'SCANNLAIN, TROTT, KLEINFELD, and GRABER, Circuit Judges.

Opinion by Judge FLETCHER, joined by Chief Judge HUG and Judges BROWNING, SCHROEDER, REINHARDT, DAVID R. THOMPSON, and GRABER. Dissent by Judge Trott, joined by Judges BRUNETTI, O'SCANNLAIN, and KLEINFELD.

FLETCHER, Circuit Judge:

Miguel Sanchez-Rodriguez pled guilty to reentering the United States illegally following a felony conviction, 8 U.S.C. § 1326(a). The district court sentenced him under 8 U.S.C. § 1326(b)(1) to thirty months in custody after departing downward on three bases: the minor nature of the underlying felony conviction; the fact that Sanchez-Rodriguez stipulated to deportation and waived deportation proceedings; and the fact that, because of delays in indicting and sentencing Sanchez-Rodriguez, he lost the opportunity to serve a greater portion of his state sentence concurrently with his federal sentence. The government appealed. We granted en banc review sua sponte to consider whether two of our previous decisions, United States v. Rios-Favela, 118 F.3d 653 (9th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 730, 139 L.Ed.2d 668 (1998), and United States v. Mendoza, 121 F.3d 510 (9th Cir.1997), are inconsistent, and, if so, what law should govern this appeal. Concluding that they are inconsistent, we overrule our previous decision in Rios-Favela to the extent that it is inconsistent with this opinion, and affirm the district court.

I.

In May 1996 Sanchez-Rodriguez was sentenced in state court to a three year prison term for the sale of a controlled substance. The Immigration and Naturalization Service (INS) was notified of his arrest in April 1996. Seven months later the government charged Sanchez-Rodriguez with violating 8 U.S.C. § 1326(b)(1) by illegally reentering the United States subsequent to a felony conviction. The underlying felony was a 1988 conviction for the sale of heroin valued at $20 for which Sanchez-Rodriguez received three years probation (later revoked) and 90 days in county jail.

Sanchez-Rodriguez pled guilty to illegal reentry. No plea bargain was entered into. Pursuant to section 2L1.2 of the United States Sentencing Guidelines (U.S.S.G.), Sanchez-Rodriguez' base level offense was eight. ¹ A 16-level enhancement was imposed because the predicate felony, the $20 heroin sale, was an aggravated felony. ² See U.S.S.G. § 2L1.2(b)(2). The Probation Office recommended a three-level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, bringing Sanchez-Rodriguez' offense level to 21. His criminal history category was VI. The sentencing range for an offense level of 21 and a criminal history category of VI was 77 to 96 months. The Probation Office, however, recommended three bases for departure: (1) the small amount of drugs involved in the predicate offense used as the basis for the 16-level increase in Sanchez-Rodriguez' offense level; (2) the lost opportunity to reduce the total time in custody due to the delay in charging and sentencing Sanchez-Rodriguez on the federal charge; and (3) Sanchez-Rodriguez' agreement to waive a deportation hearing. The Probation Office recommended a 30-month sentence.

The government agreed that a departure for stipulating to deportation was appropriate, but argued that departure based on the other two factors listed was unwarranted. ³ The district court adopted the recommendation of the Probation Office and imposed a 30 month sentence. ⁴ The government timely appealed.

II.

We have jurisdiction pursuant to 18 U.S.C. § 3742(b) (Sentencing Guidelines) and 28 U.S.C. § 1291 (final judgments). We review a district court's departure decision for an abuse of discretion. See United States v. Sablan, 114 F.3d 913, 916 (9th Cir.1997) (en banc) (citing Koon v. United States, 518 U.S. 81, 98-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)), cert. denied, --- U.S. ----, 118 S.Ct. 851, 139 L.Ed.2d 752 (1998). In doing so, we give "substantial deference" to the district court's decision to depart, "for it embodies the traditional exercise of discretion by a sentencing court." Koon v. United States, 518 U.S. 81, 98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Whether a factor is a permissible ground for departure is a matter of law, although "[l]ittle turns on whether ... we label review of this particular question abuse of discretion or de novo, for an abuse of discretion standard does not mean a mistake of law is beyond appellate correction." Id. at 100, 116 S.Ct. 2035.

III.

In Rios-Favela, we addressed the precise issue presented by this appeal--whether the district court may depart downward based on the nature of the defendant's felony that is predicate to his current conviction. Relying on two cases ⁵ that had been decided before Koon, the Rios-Favela panel held that a district court may never depart downward based on the nature of the predicate felony, "[b]ecause the Commission adequately considered the nature of the predicate aggravated felonies warranting the sixteen-level adjustment." Rios-Favela, 118 F.3d at 658.

In Mendoza, we considered whether a district court could depart based on the fact that the defendant, a middle-man between methamphetamine suppliers and their buyers, was unaware of the purity of the methamphetamine that he was delivering. The district court held that it had no authority to depart, because the Guidelines Commission already had taken into account the purity of the methamphetamine when it designed the Guidelines. We reversed, holding that the district court was not precluded from considering whether a downward departure was warranted based on the defendant's lack of knowledge of and control over the purity of the methamphetamine that he was delivering. The panel noted that "[w]e are not at liberty, after Koon, to create additional categories of factors that we deem inappropriate as grounds for departure in every circumstance." Mendoza, 121 F.3d at 513 (citing United States v. Cubillos, 91 F.3d 1342, 1344 (9th Cir.1996)).

We conclude that the reasoning and holding of Mendoza are consistent with the Supreme Court's approach in Koon, while Rios-Favela is antithetical. The district court may depart in its discretion based on the nature or circumstances of an underlying aggravated felony. In so holding, we join (albeit for different reasons) the Eighth Circuit, the only other circuit court to consider this issue since Koon was decided. See United States v. Diaz-Diaz, 135 F.3d 572 (8th Cir.1998).

A.

Koon made clear that we cannot categorically forbid a district court from departing downward on any basis except for those specifically proscribed in the Guidelines. ⁶ The government raised the exact argument in Koon that it raises to us in the instant case--that certain factors simply are not proper bases for departure. See 518 U.S. at 106, 116 S.Ct. 2035 ("As an initial matter, the Government urges us to hold each of the factors relied upon by the District Court to be impermissible departure factors under all circumstances."). The Court rejected that argument, holding that

Congress did not grant federal courts authority to decide what sorts of sentencing considerations are inappropriate in every circumstance.... The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it "does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case."

Id. (citing 1995 U.S.S.G. ch. I, pt. A, intro. cmt. 4(b)) (emphasis added). In deciding whether a factor may never be used as a basis for departure, we must ask only "whether the Commission has proscribed, as a categorical matter, consideration of the factor" at issue. Id. at 109, 116 S.Ct. 2035. Here, the Commission has not precluded consideration of the nature of a defendant's predicate felony. We may not categorically forbid departure on this basis.

B.

The government insists that the district court nevertheless may not depart in the instant case, because the Guidelines provide for a 16-level enhancement if a defendant has been convicted of a felony, defined to include "any illicit trafficking in any controlled substance." U.S.S.G. § 2L1.2, cmt. (n.7). The government argues that this definition demonstrates Congressional intent to limit the district court's ability to consider, in its discretion, whether the nature of a defendant's underlying drug trafficking offense warrants departure. We disagree.

As noted, the Court has held that the Commission in fact did not intend to preclude consideration of any factor except those that the Guidelines specifically forbid. Further, while it is true that any drug trafficking offense will trigger the 16-level enhancement for illegal reentry following an aggravated felony, the district court's inquiry does not end there. After applying the enhancement, the district court must then determine whether a downward departure is warranted. See U.S.S.G. § 1B1.1 (outlining the steps taken in determining an appropriate sentence under the Guidelines). As the Commission itself has made clear, a departure may be warranted even if a specific guideline "linguistically applies" to the defendant's...