Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-22-2003
USA v. Jiminez
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4369
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"USA v. Jiminez" (2003). 2003 Decisions. Paper 264.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-4369
UNITED STATES OF AMERICA,
v.
CARLOS ENRIQUE JIMINEZ,
a/ka/ VICTOR PEREZ-VIERA,
Carlos Jimenez,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 00-cr-00659)
District Judge: Hon. Louis H. Pollak
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 15, 2003
BEFORE: MCKEE, SMITH and COWEN, Circuit Judges
(Filed September 22, 2003)
OPINION
COWEN, Circuit Judge.
Carlos Enrique Jimenez1 appeals from the judgment of conviction and sentence of
the United States District Court for the Eastern District of Pennsylvania. We will affirm.
I.
Jimenez was discovered as a stowaway aboard a Turkish vessel in Philadelphia,
Pennsylvania. A citizen and national of the Dominican Republic, he had previously been
deported from the United States after a conviction for a crime of violence carrying a term
of imprisonment of at least one year. On October 26, 2000, a grand jury indicted Jimenez
for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled
guilty to this offense on December 19, 2000.
Jimenez appeared for a sentencing hearing on November 22, 2002. The
presentence investigation report stated that Jimenez’s total offense level was 21 and his
criminal history category was V. The resulting sentencing range was 70 to 87 months.
Although not objecting to these calculations, Jimenez sought a downward departure on
three grounds. He first argued that such a departure should be granted because of his
extraordinary efforts at rehabilitation pursuant to United States v. Sally, 116 F.3d 76 (3d
Cir. 1997). The defense submitted documents indicating his participation in several
programs at the Federal Detention Center in Philadelphia after his offense. Jimenez also
claimed extraordinary family circumstances. His wife and two sons provided evidence to
1
The caption incorrectly indicates that this surname is “Jiminez.”
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support this second basis of departure.2 Finally, he asserted that, even if these separate
grounds were rejected, the District Court should find that a combination of his
rehabilitative efforts and family circumstances justified departing from the otherwise
applicable sentencing range.
The District Court questioned whether any departure could be granted in this case
on the basis of either the Sally doctrine or Jimenez’s family ties. The District Court then
discussed with the prosecutor the policy reasons supporting the incarceration of a person
for an extended period even though he or she will be deported. Jimenez reiterated his
assertion that a combination of these factors justified a departure, and the District Court
noted that it understood this contention.
Before rendering its decision, the District Court summarized the assertions based
on extraordinary efforts at rehabilitation and family connections as well as the “aggregate
argument” in which these two factors are “taken together.” App. at 31. Jimenez’s
participation in several prison programs did not meet the requisite “level of extraordinary
rehabilitative achievement.” App. at 32. With respect to his family ties, the District
Court likewise found that the sympathetic testimony of family members failed to remove
this case from the otherwise applicable sentencing range.
2
Letters from these individuals were also submitted to the District Court.
3
The District Court then turned to Jimenez’s aggregate argument as well as its own
doubts as to the policy of imprisoning for six or seven years an individual facing eventual
deportation. It specifically noted:
[The defense counsel] has urged that the two ingredients should be put
together, and that in combination they would warrant a downward
departure. If I thought that there was a persuasive basis in law for acceding
to that argument, I would find it very appealing for the reason that, as I have
explained in my colloquy with [the prosecutor], I find it -- I find it a very
difficult Government policy to defend, to place somebody in prison for six
or seven years as would be called for by the [United States Sentencing]
Guidelines and then to deport him.
App. at 33. It suggested that a lesser term of imprisonment could likewise advance the
government’s objective of discouraging illegal reentry into this country. The District
Court, however, found:
[T]he Guidelines representing the Sentencing Commission’s
implementation of the responsibilities delegated to it by Congress, call for
this -- these results. As I’ve said, I would be receptive to [the defense
counsel’s] argument that somehow in combination these two grounds for
departure, each of which seem to be legally insufficient separately, would --
would warrant a downward departure, but I find no basis in the Guidelines
for saying so.
App. at 34. It reiterated the ordinary nature of Jimenez’s positive attempts at
rehabilitation and his strong family connections, emphasizing that these factors did not
rise to the level necessary for departure. The District Court accordingly concluded:
And so I find myself -- not at all happy about it -- coming to the
conclusion that under the Guidelines, it would for me be an abuse of
discretion to depart downwardly on either -- on either of the two bases
urged by [the defense counsel], the post-offense rehabilitation or the special
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family relationships or to grant a voluntary departure on a combination of
the two.
App. at 35-36.
Jimenez was sentenced to a term of imprisonment of 70 months, supervised release
for two years, and a $100.00 special assessment. The District Court, in discussing the
right to appeal, additionally noted:
If the defendant can persuade the Court of Appeals that there is an abuse of
discretion in not departing downward under the circumstances or an error of
law in my conclusion that the aggregation of the two proposed grounds of
downward departure, neither of which seem to me separately applicable,
that the aggregation of them did not strengthen the case, then that may be
challenged either as an abuse of discretion or as an error of law.
App. at 36. Jimenez appealed.
II.
Jimenez contends that the District Court erroneously believed that it did not
possess the authority to depart downward based on a combination of factors. We lack
jurisdiction to review a district court’s discretionary refusal to grant a downward
sentencing departure where the district court was aware of its power to order such a
departure. See, e.g., United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996). We do
possess appellate jurisdiction to consider the claim that the district court committed legal
error in refusing to depart because it believed that it lacked the legal authority to do so.
See, e.g., United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991); United States
v. Denardi, 892 F.2d 269, 271 (3d Cir. 1989). “If the district court’s stated reasons are
5
ambiguous -- so that the record does not reflect whether the court’s denial is based on
legal or discretionary grounds -- then the proper remedy is to ‘vacate the sentence and
remand for the district court to clarify the basis for its ruling.’” United States v. Stevens,
223 F.3d 239, 247 (3d Cir. 2000) (quoting United States v. Mummert, 34 F.3d 201, 205
(3d Cir. 1994)).
The District Court sufficiently acknowledged its power to depart on the basis of a
combination of factors. It clearly considered Jimenez’s “aggregate argument.” App. at
31. The District Court was apparently sympathetic and receptive to this argument, and it
also indicated that Jimenez could challenge on appeal its conclusion concerning
aggregation “as an abuse of discretion or as an error of law.” App. at 36. Many of its
comments, however, seem to relate to its criticism of the policy behind imprisoning a
person for six or seven years even though he or she will then be deported. Although
discussed together with the aggregation argument, such policy concerns do not appear
related to the question of whether the combined effect of Jimenez’s rehabilitative
activities and his family responsibilities supported a departure. Finding “no basis in the
Guidelines,”App. at 34, the District Court specifically ruled that it would be an abuse of
discretion to depart on the grounds of either the rehabilitative steps or his family
circumstances “or to grant a voluntary departure on a combination of the two,” App. at
36. The District Court therefore exercised its discretionary and unreviewable authority in
declining to depart.
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III.
For the foregoing reasons, the judgment of the District Court entered on December
10, 2002 will be affirmed.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Robert E. Cowen
United States Circuit Judge
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