US v. Contreras, 97-2224.

• Decision Date: 17 June 1999
• Docket Number: No. 97-2224.,97-2224.
• Citation: 180 F.3d 1204
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dolores CONTRERAS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

180 F.3d 1204

UNITED STATES of America, Plaintiff-Appellant, v. Dolores CONTRERAS, Defendant-Appellee.

No. 97-2224.

United States Court of Appeals, Tenth Circuit.

June 17, 1999.

COPYRIGHT MATERIAL OMITTED

Thomas L. English, Assistant United States Attorney (John J. Kelly, United States Attorney, and Charles L. Barth, Assistant United States Attorney, Albuquerque, New Mexico, on the briefs), Albuquerque, New Mexico for Plaintiff-Appellant.

Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the briefs), Denver, Colorado for Defendant-Appellee.

Before ANDERSON, McKAY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

From 1986 until 1992, Dolores Contreras participated in a drug conspiracy, run by her father, which sold more than 20,000 pounds of marijuana and more than 20,000 pounds of cocaine throughout the United States. After a mistrial Ms. Contreras was re-indicted, and late in 1994 she was convicted on four counts — conspiracy, investment of illicit drug profits, and two counts of money laundering. At sentencing, the district court granted Ms. Contreras' motion for a downward departure and sentenced her to 120 months imprisonment. On appeal, this court reversed the district court's decision to depart downward and remanded the case for resentencing. At resentencing, the district court again departed downward, reaching the same sentence of 120 months imprisonment. The government challenges the departure pursuant to 18 U.S.C. § 3742(b). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and again we reverse.

I. Background

The history of this case up through the first appeal is well documented in United States v. Contreras, 108 F.3d 1255, 1258-61 (10th Cir.1997). Therefore, we only briefly recount some early background for context and focus on events since our remand.

Dolores Contreras is one of twenty-two people charged by the government with participating in an extensive drug conspiracy run by her father, Gabriel Rodriguez-Aguirre. Mr. Rodriguez-Aguirre's family-run organization accounted for the sale of over 20,000 pounds of marijuana and 20,000 pounds of cocaine throughout the United States between 1984 and 1992.

From December 1986 until October 1992, Ms. Contreras' role in her father's illicit business consisted primarily of storing large amounts of drugs at her Phoenix, Arizona home and using profits from drug sales. Ms. Contreras started assisting her father in this illegal enterprise when she was 17, but tellingly, she remained active in the criminal enterprise until she was 24, and even then, her participation stopped only because she and her father were arrested. On October 20, 1992, the United States charged Ms. Contreras with conspiracy to distribute more than 100 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A), and three counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(B)(I). Ms. Contreras pled not guilty, and after one mistrial, the United States obtained a superseding indictment which charged Ms. Contreras with conspiracy to possess with the intent to distribute cocaine, conspiracy to distribute cocaine, receiving income from the distribution of controlled substances, and investing the ill-gotten gains, in violation of 21 U.S.C. § 854. On December 15, 1994, after a one-month trial, the jury convicted Ms. Contreras on four counts — conspiracy, investment of illicit drug profits, and two counts of money laundering.

At sentencing, the district court adopted the factual findings and guideline application in Ms. Contreras' presentence report, which assessed her base offense level at 38, her criminal history category at I, and her guideline range at 235 to 293 months imprisonment. Nevertheless, the court granted Ms. Contreras' motion for a downward departure and sentenced her to 120 months in prison "to avoid an unwarranted disparity of sentences" between Ms. Contreras and co-conspirator Paula Denogean.

The government appealed Ms. Contreras' original sentence, and this court held that a disparity in sentences between Ms. Contreras and Ms. Denogean was an inappropriate ground for departure because the two were not similarly situated — "Ms. Contreras was convicted by a jury of four separate offenses, while Ms. Denogean pled guilty to one offense." Contreras, 108 F.3d at 1272. Accordingly, we held that the district court had abused its discretion and reversed Ms. Contreras' sentence and remanded the case to the district court.

At resentencing, the district court again departed downward from the applicable guideline range of 235 to 293 months imprisonment. Again the district court sentenced Ms. Contreras to 120 months in prison (the statutorily required minimum) — on the basis of parental influence, and, once again, on the disparity of sentences. Again the government appeals the sentence, claiming the district court relied on impermissible grounds for departure. And again we reverse the district court and remand for resentencing.

II. Discussion

A. Standard of Review

After the Supreme Court's decision in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), departures from the Sentencing Guidelines must be reviewed under a unitary abuse-of-discretion standard. See United States v. Collins, 122 F.3d 1297, 1302 (10th Cir.1997). In Collins, this court articulated the four-part inquiry a reviewing court must undertake in determining whether a district court abused its discretion in departing from the Guidelines. First, the court must determine "whether the factual circumstances supporting a departure are permissible departure factors." Id. at 1303. Second, the court must assess "whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland thus warranting a departure." Id. Third, the court must decide whether the record provides a sufficient factual basis for the departure. See id. Finally, the court must examine the degree of departure to assure it is reasonable. See id.

Collins explained that the first inquiry — whether the factual circumstances supporting departure are permissible departure factors — is a legal one, as to which we owe no deference to the district court, while the next three inquiries are more factual in nature, and accordingly are due more deference on review. See id. at 1302-03. In particular, "substantial deference" is given to the district court in our review of the second factor — whether a particular defendant is within the heartland given all the facts of the case. See id.; United States v. Whiteskunk, 162 F.3d 1244, 1249 (10th Cir.1998); United States v. Jones, 158 F.3d 492, 497 (10th Cir.1998). In Koon, the Supreme Court stated:

Whether a discouraged factor nonetheless justifies departure because it is present in some unusual or exceptional way, are matters determined in large part by comparison with the facts of other Guidelines cases. District courts have an institutional advantage over appellate courts in making these sorts of determinations, especially as they see so many more Guidelines cases than appellate courts do.

518 U.S. at 98, 116 S.Ct. 2035. While the Court acknowledged that "whether a factor is a permissible basis for departure under any circumstances is a question of law, and the court of appeals need not defer to the district court's resolution of the point," the Court clearly stated that considerations of "whether a factor in the particular instance suffices to make the case atypical" is a "factual matter." Id. at 100, 116 S.Ct. 2035.

However, this is not to say that a district court's decision to depart because the defendant's situation is outside the heartland is unreviewable. To the contrary, such decisions are reviewable under an abuse of discretion standard. And, an important consideration in evaluating whether the district court abused its discretion to depart will be whether the factor or factors relied upon are prohibited, discouraged, encouraged, or not discussed in the Guidelines. See id. at 98, 116 S.Ct. 2035 ("The deference that is due depends on the nature of the question presented.").

For example, if the district court relied on an impermissible factor — an inquiry that we make de novo, see id. at 100, 116 S.Ct. 2035 — the decision to depart would, as a matter of law, constitute an abuse of discretion. See United States v. Dominguez-Carmona, 166 F.3d 1052, 1056-57 (10th Cir.1999); Whiteskunk, 162 F.3d at 1249-50 (if a departure decision is based on an impermissible factor it is error). Similarly, if the district court relied upon a permissible, but discouraged, factor our review of a decision to depart must take cognizance of the discouraged status of the factor relied upon in evaluating whether the district court abused its discretion. In short, the district court's exercise of discretion to depart in such circumstances must be measured against the backdrop that "the Supreme Court has made it clear that when a factor is discouraged . . . `the court should depart only if the factor is present to an exceptional degree . . . .'" United States v. Archuleta, 128 F.3d 1446, 1449 (10th Cir.1997) (quoting Koon, 518 U.S. at 96, 116 S.Ct. 2035); see also Dominguez-Carmona, 166 F.3d at 1057. In such circumstances "courts should depart downward only in rare cases." Archuleta, 128 F.3d at 1452 (reversing a district court's decision to depart downward based upon the discouraged factor of a defendant's family responsibilities); see also Jones, 158 F.3d at 499 (disapproving use of the discouraged factor of family responsibilities, but affirming downward departure on the basis of other supporting factors); United States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir.1997).

B. Analysis

At Contreras' resentencing, the district court identified two reasons for its downward departure. First, the court focused on the influence exerted on Ms. Contreras by her fa...