UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-50755
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
FERNANDO CANTU-RAMOS,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Civil Docket #DR-00-CR-36-1
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May 24, 2001
Before DAVIS, JONES, and DeMOSS, Circuit Judges.
PER CURIAM:*
The United States appeals from the district court’s sua
sponte grant of a substantial downward departure in sentencing
appellee Fernando Cantu-Ramos. Ramos pled guilty to possession of
cocaine with intent to distribute after he was caught trying to
drive a car laden with 20 pounds of cocaine and 86 pounds of
marijuana across the Mexican border through Eagle Pass, Texas. The
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
PSR indicated a sentencing range of 57 to 71 months. The district
court departed downward to 30 months, citing appellee’s “super
acceptance of responsibility,” the health problems of one of his
children, his lack of a previous criminal record, and the “unique
economic and political and human circumstances that we are dealing
on the southwest border.” We reverse and remand for resentencing.
While downward departures are reviewed for abuse of
discretion, district courts may depart downward from the applicable
guideline range only when they find a “mitigating circumstance of
a kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guideline.” U.S.S.G.
§ 5K2.1; 18 U.S.C. § 3553(b). The United States Supreme Court has
acknowledged that, “when a court finds an atypical case, one to
which a particular guideline linguistically applies but [in which]
conduct significantly differs from the norm, the court may consider
whether a departure is warranted.” Koon v. United States, 518 U.S.
81, 98-100 (1996). A departure is appropriate only in the
extraordinary case that falls outside the “heartland” of typical
offenses covered by the conviction.
While the district court’s desire to show mercy and
compassion to this defendant are abstractly laudable, he abused his
discretion in this case. All of the factors cited by the district
court are either taken into consideration by the relevant
guidelines or are excluded by the guidelines from sentencing
relevancy. First, the guidelines provide for, and appellant
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already received, a three-level downward adjustment for acceptance
of responsibility. Second, the absence of a criminal history did
not provide an extraordinary reason for departing from the
guidelines range, nor is the appellee’s failure to lead the
government on a high-speed chase (also mentioned in passing by the
court) relevant at all. Third, while the court did not expressly
rely on appellee’s mention of a child’s dental problem, the
motivation for committing the crime was, in this case, not
sufficiently compelling to justify a 50% sentence reduction. (See,
U.S.S.G. § 5H1.6 (family ties and responsibilities are not
ordinarily relevant). Finally, the guidelines specifically state
that economic and geographic concerns are not relevant to a
sentence determination. See U.S.S.G. § 5H1.10.
As the district court predicted, this court must correct
his sentencing error, and accordingly we reverse and remand for
resentencing in accordance with the guidelines.
Sentence REVERSED and REMANDED.
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