United States Court of Appeals
For the First Circuit
No. 02-1190
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN EDUARDO MEJIA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge]
Before
Selya, Lynch, and Lipez, Circuit Judges.
Timothy G. Watkins for appellant.
Cynthia A. Young, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief,
for appellee.
October 30, 2002
LIPEZ, Circuit Judge. During his sentencing hearing for
illegally reentering the United States after deportation, defendant
Juan Eduardo Mejia argued that he should receive a downward
departure from the sentence prescribed in the United States
Sentencing Commission Guidelines (the Sentencing Guidelines)
because his motivation for returning, namely, to care for his
daughter, took him out of the "heartland" of illegal reentry
defendants.1 The district court denied his motion for a downward
departure based in part on its belief that it had no authority to
consider a defendant's motive for returning as a basis for
departure.
Mejia appeals this legal determination, arguing that the
district court erred in its conclusion that it had no authority to
consider a downward departure based on a defendant's atypical
motivation in returning to the United States. Finding that, in
this case, Mejia's "motivation" argument for departure is
semantically and practically equivalent to the specific offender
1
The Introduction to the Sentencing Guidelines explains:
The Commission intends the sentencing courts to treat
each guideline as carving out a "heartland," a set of
typical cases embodying the conduct that each guideline
describes. When a court finds an atypical case, one to
which a particular guideline linguistically applies but
where conduct significantly differs from the norm, the
court may consider whether a departure is warranted.
United States Sentencing Commission, Guidelines Manual, Ch. 1,
Pt. A, intro. comment. 4(b)(Nov. 2001).
-2-
characteristic of "family ties and responsibilities" set forth in
the Sentencing Guidelines, USSG § 5H1.6, we affirm the district
court's denial of a downward departure without addressing the legal
correctness of the district court's conclusion that motivation is
an impermissible basis for departure.
I.
We recite the facts as Mejia alleges them to be. Mejia
first came to the United States in 1988, living briefly with his
father in Boston before moving to New Bedford, where he met Melissa
Desroches. During the course of their one-year relationship,
Desroches and Mejia had a child: Adria Mejia-Desroches. At the
relevant time, Adria resided with and was raised by her maternal
grandmother, Gwen Andrade and Andrade's husband, on Cape Cod. Her
mother played no role in her upbringing due to drug dependency and
related problems, and her grandparents have legal custody.
Before his 1992 arrest for drug trafficking, possession
of a firearm and assault with a dangerous weapon, Mejia lived in
Hyannis, Massachusetts, near his daughter. During his
incarceration following conviction for these offenses, and later
when living in the Dominican Republic after his deportation on
February 9, 1995, Mejia kept in contact with his daughter. In
August 2000, Mejia received news that Gwen Andrade was ill and was
not expected to live much longer. Mejia asserts that it was out of
-3-
concern for his daughter's well-being that he decided to leave the
Dominican Republic and return to Massachusetts.
After his return to the United States, Mejia lived with
a girlfriend in Mattapan, MA and earned approximately $600-$700 per
week working for a cable company in New Hampshire. While he did
not provide financial support to Andrade for the care of Adria, he
did provide certain necessities and gifts for Adria when he had the
money. During this time Mejia would visit Adria, and Andrade
allowed Adria to be with her father on overnight visits.
On January 29, 2001, Mejia was arrested in Boston on
charges of distributing cocaine, and subsequently convicted on May
18, 2001, in South Boston District Court and sentenced to time
served. He was immediately taken into federal custody on an
outstanding arrest warrant for illegal reentry following
deportation.
Pursuant to a plea agreement with the government, Mejia
pled guilty on September 14, 2001, to one count of illegally
reentering the United States after deportation in violation of 8
U.S.C. § 1326(a)(b)(2) (2000). Before sentencing, Mejia filed a
motion requesting a downward departure because his reentry into the
United States was "based on his extraordinary family ties and
responsibilities with respect to his young daughter." At the
sentencing hearing Mejia, relying on United States v. Lipman, 133
F.3d 726 (9th Cir. 1997), revised his motion for a downward
-4-
departure, asserting instead that his motivation for returning to
the United States took him out of the heartland of reentry cases.
Mejia's counsel argued that the "archetype of illegal reentry
offenders which Congress targeted for severe punishment" are those
who return to the United States for unlawful or pecuniary reasons.
Thus, because Mejia's motivation for returning was concern for his
daughter, he fell outside the heartland of the offense of illegal
reentry. The district court denied the motion, concluding that it
did not have the authority to depart from the Sentencing Guidelines
on the basis of motivation as a factor standing alone, and that, in
light of Andrade's husband's plans to retain custody of Adria,
Mejia's situation was insufficiently extraordinary to meet the
requirements of a downward departure based on the "family ties and
responsibilities" factor. USSG § 5H1.6.
Applying the Sentencing Guidelines, the district court
determined that Mejia had a base offense level of 8. However,
Mejia had been deported after having been sentenced to 4-5 years on
a 1992 conviction for drug trafficking, and was therefore subject
to a 16-level increase for a defendant who was previously deported
after a conviction for certain specified felonies, including drug
trafficking offenses for which the sentence imposed exceeded 13
months. USSG § 2L1.2(b)(1)(A). The district court calculated
Mejia's adjusted offense level to be 24, bringing his total offense
level, after the 3-level downward adjustment for acceptance of
-5-
responsibility, to 21. On December 14, 2001, Mejia was sentenced
to 46 months' imprisonment and 2 years' supervised release.
II.
The Sentencing Reform Act of 1984 allows a defendant to
appeal an upward departure and the government to appeal a downward
departure. 18 U.S.C. § 3742(a)(3), (b)(3) (2000). A defendant can
also appeal from the refusal of the district court to grant a
downward departure if the district court bases its decision on a
view that it lacks the legal authority to consider a departure.
United States v. Ahlers, No. 01-2570, slip op. at 6 (1st Cir. Sept.
30, 2002)("Appellate jurisdiction from a denial of a departure
request attaches when the sentencing court bases its action on a
perception that it lacks the legal authority to grant the
request."); United States v. Woodward, 277 F.3d 87, 92-93 (1st Cir.
2002)("[A] refusal to depart is unreviewable unless the district
court based its decision on an error of law.")(quoting United
States v. Dewire, 271 F.3d 333, 337-38 (1st Cir. 2001)); see also
United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994)("It is by
now axiomatic that a criminal defendant cannot ground an appeal on
a sentencing court's discretionary decision not to depart below the
guideline sentencing range."). Accordingly, we review de novo a
district court's determination of its authority to depart, but lack
jurisdiction to review a discretionary decision not to depart from
the Sentencing Guidelines.
-6-
III.
At Mejia's sentencing hearing, the district court
declined to depart from the Sentencing Guidelines on two grounds.
First, the court concluded that motive is not a permitted factor
for departure: "I do not think...that I have authority to depart.
I do not think that motive, whatever the motive in this case for
coming back to see his daughter, is a ground for departure."
Second, the court determined that the facts of Mejia's case were
not sufficiently extraordinary to meet the standard for a departure
based on the "family ties and responsibilities" offender
characteristic.
The Sentencing Guidelines establish ranges of criminal
sentences for federal offenses and offenders. A district court
must impose a sentence within the applicable Guideline range if it
finds the case to be a typical one. However, in an "exceptional"
case, a district court may depart from the Guideline range "if [it]
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." 18 U.S.C. § 1553(a) (2000); see
also Koon v. United States, 518 U.S. 81, 95 (1996); United States
v. Pereira, 272 F. 3d 76, 80 (1st Cir. 2001).
The Sentencing Commission lists certain offender
characteristics that can never be grounds for departure, and other
factors that are either encouraged or discouraged bases for
-7-
departure. The Sentencing Commission lists "family ties and
responsibilities" as a discouraged factor, and stipulates that
"[f]amily ties and responsibilities and community ties are not
ordinarily relevant in determining whether a sentence should be
outside the applicable guideline range." USSG § 5H1.6.
Unmentioned offender characteristics that are "the semantic or
practical equivalents" of encouraged or discouraged characteristics
should be examined within the structure of the Sentencing
Guidelines. Koon, 518 U.S. at 110. "To hold otherwise would
enable defendants to circumvent the entire Guideline structure by
cleverly characterizing discouraged factors in such a way as to
appear as--and be treated under the more lenient standard of--
unmentioned factors."2 United States v. Bogdan, 284 F.3d 324, 329
(1st Cir. 2002); see also United States v. Romero, 32 F.3d 641, 653
(1st Cir.1994) (treating defendant's status as a father under the
category of "family ties and responsibilities," despite his
argument that such status should be examined as a separate,
unmentioned factor).
2
A court may decide to depart from the Sentencing Guidelines
in reliance on a factor not specifically enumerated in the
Guidelines. "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." Koon, 518 U.S. at 96 (internal citations
omitted). As we said in Bogdan, this analytical framework for
unmentioned factors, as exposited in Koon, is less demanding than
the requirement of "exceptionality" for discouraged factors.
-8-
Arguing that his motivation for committing the offense of
unlawful reentry is a factor not explicitly listed by the
Commission as encouraged or discouraged, Mejia challenges the
district court's determination that motivation is not a permissible
unmentioned ground for departure. However, the claim that his
relationship with his daughter and his responsibility as a parent
were factors in the commission of the offense and should therefore
mitigate his punishment is not meaningfully distinguishable from
the argument that his sentence should be reduced due to his
exceptional family ties and responsibilities.
Defendants usually invoke the "family ties and
responsibilities" extant at the time of sentencing in arguing for
a downward departure (that is, they argue the consequences of a
sentence on their family ties and responsibilities). Here, with
his motivation argument, Mejia invokes the "family ties and
responsibilities" extant at the time he committed the crime to
lessen his culpability for the crime of illegal reentry. However,
there is nothing in the text of USSG § 5H1.6 stipulating that
"family ties and responsibilities" is only a discouraged factor in
assessing the consequences of a sentence and not in assessing the
culpability for a crime. Thus, we find that Mejia's claim, however
he wishes to characterize it, is inescapably based on factors
explicitly accounted for in the Sentencing Guidelines, namely,
"family ties and responsibilities," and do not reach the question
-9-
of whether motivation as a separate category is ever a permissible
ground for departure.
The district court determined that the facts of Mejia's
family ties and responsibilities are not sufficiently exceptional
to warrant a departure on this ground. Because the district court
did not misunderstand its legal authority to depart downward, but
merely exercised its discretion not to do so, we lack jurisdiction
to review the court's refusal to grant a departure.
Accordingly, the sentence imposed by the district court
is affirmed.
So ordered.
-10-