United States Court of Appeals
For the First Circuit
No. 01-1695
UNITED STATES OF AMERICA,
Appellee,
v.
ROMULO EMILIO VASQUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Circuit Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Robert D. Watt, Jr. on brief for appellant.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Ira Belkin, Assistant United States Attorneys, on
brief for appellee.
February 6, 2002
SELYA, Circuit Judge. This appeal requires us to
address, for the first time, a question endemic to the
sentencing of deportable aliens convicted of federal criminal
offenses: Do the adverse collateral consequences that an
incarcerated defendant may experience by reason of his status as
a deportable alien collectively constitute a permissible ground
for a downward departure under USSG §5K2.0? With regard to
illegal reentry cases in which sentence is imposed pursuant to
8 U.S.C. § 1326(a) and USSG §2L1.2, we answer that question in
the negative. That answer, in turn, prompts us to affirm the
sentence imposed in this case.
The facts are straightforward. In 1991, defendant-
appellant Romulo Emilio Vasquez, a Dominican national, was
convicted in a Rhode Island state court of assault with a
dangerous weapon. The Immigration and Naturalization Service
(INS) deported him after he had served a term of immurement.
The appellant thereafter returned illegally to the United States
and again ran afoul of local law enforcement. This time, he was
arrested for, and convicted of, trafficking in cocaine.
These transgressions brought the appellant to the
renewed attention of the INS. On November 8, 2000, a federal
grand jury handed up an indictment charging that the appellant,
a previously-deported alien, had been found in Rhode Island
-3-
without having obtained the consent of the Attorney General to
reapply for admission into the United States, and that,
therefore, he had violated 8 U.S.C. § 1326. 1 The appellant
pleaded guilty to that charge (which we shall call "illegal
reentry").
The principal sentencing guideline applicable to
illegal reentry cases is USSG §2L1.2 (governing, inter alia,
unlawful reentry into the United States after a previous
deportation). The parties agree that this guideline controls,
and that, under it, the appellant faced a sentencing range of 46
to 57 months (adjusted offense level 21; criminal history
category III). At the disposition hearing, the appellant sought
a downward departure on the ground that, as a deportable alien,
he would suffer certain adverse collateral consequences during
his incarceration (e.g., he claimed that he would be ineligible
for assignment to a minimum-security prison camp or for certain
rehabilitative programs offered by the Bureau of Prisons). The
district court refused to oblige, concluding that it lacked
authority to depart on the basis of such collateral
1
With exceptions not relevant here, the statute of
conviction provides that any alien who, after having been
deported, "enters, attempts to enter, or is at any time found
in, the United States" without the Attorney General's express
consent to apply for his readmission shall be guilty of a
federal crime and punished as provided by law. 8 U.S.C. §
1326(a)(2).
-4-
consequences. The court thereupon sentenced the appellant at
the bottom of the guideline sentencing range. This appeal
ensued.
Appellate review of a sentencing court's decision
granting a departure is for abuse of discretion. Koon v. United
States, 518 U.S. 81, 98-100 (1996); United States v. Snyder, 136
F.3d 65, 67 (1st Cir. 1998). Conversely, a sentencing court's
decision not to depart is largely unreviewable. See United
States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). There are,
however, a few exceptions to this rule. One exception is for
cases in which the sentencing court's refusal to depart stems
from a misperception of its authority under the law. See id.;
see also United States v. Ortiz-Santiago, 211 F.3d 146, 148 (1st
Cir. 2000) (explaining that appellate jurisdiction lies if "the
putative appellant can show that the district court acted in the
mistaken belief that it lacked the ability to depart"). The
question of whether the guidelines countenance a particular
ground for departure goes to the district court's authority,
and, thus, is reviewable. Because the resultant question is a
question of law, Koon, 518 U.S. at 100, we subject the district
court's determination that it lacked authority to depart to de
novo review and proceed to "determine the existence vel non of
-5-
legal error without special deference to the sentencing court's
views," Snyder, 136 F.3d at 67.
In this instance, the departure request had its genesis
in the sentencing guidelines' general departure provision, USSG
§5K2.0. Echoing 18 U.S.C. § 3553(b), that provision empowers
the sentencing court to deviate from the guideline sentencing
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." USSG §5K2.0 (citation and
internal quotation marks omitted). Even so, not every
aggravating or mitigating circumstance has the capability of
supporting a departure: to serve that purpose, "the
circumstance must render the case atypical and take it out of
the heartland for which the applicable guideline was designed."
United States v. Dethlefs, 123 F.3d 39, 44 (1st Cir. 1997)
(citation and internal quotation marks omitted).
Here, the appellant's case hinges on whether the
sentencing court correctly concluded that the guidelines did not
permit it to honor the appellant's identified ground for
departure. We turn, then, to an evaluation of that conclusion.
In conducting that evaluation, our inquiry centers on whether
-6-
the identified ground for departure — the feature on which the
appellant relies to distinguish his case from the mine-run —
"potentially, take[s] [the case] outside the Guidelines'
'heartland,'" thus "mak[ing] of it a special, or unusual, case."
Koon, 518 U.S. at 95 (quoting United States v. Rivera, 994 F.2d
942, 949 (1st Cir. 1993)).
The distinguishing feature identified by the appellant
here is the panoply of adverse collateral penal consequences
that flow from his deportable status. Because the sentencing
guidelines never mention this incident of the incarceration of
an alien convicted of an illegal reentry, the question reduces
to whether the Sentencing Commission nevertheless took the
identified feature into account in its formulation (and if so,
to what end). Dethlefs, 123 F.3d at 44. To solve this
conundrum, we must consider whether that feature suffices to
remove a case from the heartland established by the guidelines
as they apply to the offense of conviction. Koon, 518 U.S. at
95; Dethlefs, 123 F.3d at 44. We perform this task mindful that
the Court has predicted that departures premised on such
unmentioned circumstances will be rare. Koon, 518 U.S. at 95.
-7-
Because this is an illegal reentry case — and we limit
our holding accordingly2 — this question implicates the theory
and structure of USSG §2L1.2. That guideline covers offenses
involving persons who unlawfully enter into, or unlawfully
remain in, the United States. By definition, then, the only
persons sentenced under that guideline will be deportable
aliens. This fact is nose-on-the-face plain, and the Sentencing
Commission, in constructing the guideline, must have taken into
account not only the immigration status of prospective offenders
but also the collateral consequences that would flow from that
status within the federal prison system. This is powerful
evidence that the distinguishing feature upon which the
appellant relies is outside the compass of the departure
decision.
The case law bears out this intuition. Although the
appellant's argument is new to us, it is not new to the federal
appellate courts as a whole. An unbroken line of cases holds
2One court has indicated that a downward departure "may be
appropriate where the defendant's status as a deportable alien
is likely to cause a fortuitous increase in the severity of his
sentence." United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.
1994). But Smith involved a sentence imposed for a drug-
trafficking offense rather than for an illegal reentry offense.
For the reasons explicated in the text, illegal reentry cases
are functionally different as they pertain to this point.
Hence, this case does not require us to take a view as to the
continuing vitality of the Smith court's holding (which, in all
events, antedated Koon).
-8-
that where, as here, a defendant is sentenced under USSG §2L1.2
following his conviction for an illegal reentry offense, adverse
collateral penal consequences of the type and kind feared by the
appellant are not a cognizable basis for a downward departure.
See United States v. Martinez-Carillo, 250 F.3d 1101, 1106-07
(7th Cir.), cert. denied, 122 S. Ct. 285 (2001); United States
v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th Cir. 2001); United
States v. Garay, 235 F.3d 230, 232-34 (5th Cir. 2000), cert.
denied, 121 S. Ct. 1633 (2001); United States v. Martinez-Ramos,
184 F.3d 1055, 1057-59 (9th Cir. 1999); United States v. Ebolum,
72 F.3d 35, 37-39 (6th Cir. 1995).
These decisions rest on bedrock. Deportable alien
status is a universal concomitant of crimes such as illegal
reentry, and, thus, common sense dictates that such status must
have been weighed by the Sentencing Commission in formulating
USSG §2L1.2 and setting the attendant offense levels. This
means, of course, that far from being a special, unusual, or
atypical feature of an illegal reentry case, susceptibility to
deportation is a common thread that runs through all such cases.
Without more, this circumstance (and, by extension, the
collateral consequences that flow from it) is insufficient to
take an illegal reentry case out of the heartland associated
with USSG §2L1.2.
-9-
If further support for this conclusion is needed — and
we doubt that it is — we note that our resolution of this
question is foreshadowed by our earlier decision in United
States v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997). There,
the defendant argued (and the district court agreed) that his
willingness to stipulate to deportability was an appropriate
basis on which to depart downward. Id. at 1057. We reversed,
concluding that the Sentencing Commission must have known that
many of those persons sentenced for criminal offenses in the
federal courts are deportable aliens. Id. at 1057-58. Thus,
the Commission must have been "fully cognizant that virtually
all alien criminal defendants, convicted under 8 U.S.C. §
1326(a) and sentenced pursuant to U.S.S.G. § 2L1.2, would be
subject to deportation and that many undoubtedly would stipulate
to deportation." Id. at 1059. Based on this reasoning, we held
that the defendant's willingness to accede to deportation was
not a sufficiently atypical circumstance to justify a downward
departure (at least in the absence of a colorable defense to
deportation). Id.
The case at bar is a fair congener. We think it is
equally certain that the Sentencing Commission realized that all
persons convicted under 8 U.S.C. § 1326(a) and sentenced
pursuant to USSG § 2L1.2 would be deportable (and, thus, subject
-10-
to certain disadvantages within the federal prison system). It
follows inexorably that the Commission must have taken that
factor into account in framing the relevant guidelines.
The appellant has two rejoinders. First, he notes that
both the statute of conviction, 8 U.S.C. § 1326, and the pivotal
guideline, USSG §2L1.2, refer to aliens who have previously been
deported (that is, they speak only in the past tense) and do not
refer to an alien's present status. He seizes upon this usage
to suggest the obvious: that having been deported in the past
is not necessarily the same as being presently deportable. For
our purposes, however, this is a distinction without a
difference: since the appellant's present status as a
deportable alien flows ineluctably from his previous deportation
(coupled, of course, with his subsequent unlawful reentry into
the United States), the past and present merge. Put another
way, the appellant's status as a deportable alien is an inherent
element of the crime that he committed and to which both the
statute and the guideline apply, and so this element must have
been taken into consideration by the Sentencing Commission in
constructing USSG §2L1.2. See Martinez-Ramos, 184 F.3d at 1058;
United States v. Gonzalez-Portillo, 121 F.3d 1122, 1124-25 (7th
Cir. 1997).
-11-
Second, the appellant argues that if the sentencing
guidelines do not expressly forbid downward departures based on
a particular circumstance, the district court must necessarily
be authorized to depart on the basis of that circumstance.
Building on this shaky foundation, he posits that because the
Sentencing Commission eschewed any mention of the adverse
collateral penal consequences attendant to deportable status,
that circumstance must be a lawful basis for departure. We do
not agree with either the appellant's premise or his conclusion.
The Supreme Court has made it crystal clear that
impermissible bases for departure need not be invoked by name in
the sentencing guidelines. Koon, 518 U.S. at 110. Forbidden
factors may be implicit as well as explicit. United States v.
Tappin, 205 F.3d 536, 542 (2d Cir.), cert. denied, 531 U.S. 910
(2000). Substantial case law emanating from this court
subsequent to Koon validates this point. E.g., United States v.
Maldonado, 242 F.3d 1, 4-5 (1st Cir. 2001) (holding that the
cost of incarcerating a defendant who will ultimately be
deported is categorically excluded from consideration as a
lawful basis for a downward departure); Snyder, 136 F.3d at 68
(holding that even though the Sentencing Commission has not
proscribed federal-state sentencing disparity as a ground for
-12-
departure, that circumstance "is never a valid basis for a
downward departure"); Dethlefs, 123 F.3d at 49 (holding that the
fact of a straight guilty plea, without more, is categorically
excluded, by implication, as a basis for a downward departure);
Clase-Espinal, 115 F.3d at 1060 (holding that willingness to
stipulate to deportation is categorically excluded as a ground
for departure).
To sum up, the ground for departure advocated by the
appellant is insufficient as a matter of law to distinguish his
case from the mine-run of illegal reentry offenses subject to
the strictures of USSG §2L1.2. If the law were otherwise, then
every defendant in an illegal reentry case automatically would
qualify for such a departure, thus emptying the "heartland"
concept of its essential meaning. We cannot place our
imprimatur upon so counterintuitive a result.
We need go no further. We hold that in the case of
defendants sentenced for illegal reentry under 8 U.S.C. §
1326(a) and USSG §2L1.2, a district court may not depart
downward on the basis that deportable status ostensibly carries
with it certain adverse collateral penal consequences.3 Because
3We do not reach (and, therefore, express no opinion on) the
issue of whether a deportable alien does, in fact, suffer
adverse penal consequences simply by virtue of his status. We
-13-
the court below correctly anticipated this holding, it acted
appropriately in rejecting the appellant's entreaty.
Affirmed.
similarly abjure the related issue of whether such consequences,
if they exist at all, are significant.
-14-