Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-9-2003
USA v. Elvey
Precedential or Non-Precedential: Non-Precedential
Docket 01-4179
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Recommended Citation
"USA v. Elvey" (2003). 2003 Decisions. Paper 891.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-4179
UNITED STATES OF AMERICA
v.
DEAN OMAR ELVEY,
a/k/a
JORG ARTHUR BETTS,
Appellant
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cr-00388)
District Judge: Hon. Edmund V. Ludwig
Submitted Under Third Circuit LAR 34.1(a)
December 19, 2002
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges
(Filed: January 9, 2003)
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Dean Omar Elvey pled guilty in the Eastern District of Pennsylvania to a
two count indictment charging one count of illegal reentry after deportation, 8 U.S.C. §§
1326(a) and (b)(2), and one count of possession of a counterfeit passport, 18 U.S.C. §
1546. Elvey does not deny the facts underlying the conviction but appeals because the
District Court denied his motion for a downward departure and sentenced him to 30 months
in prison, 2 years supervised release, and a special assessment of $200. He filed a timely
notice of appeal.
Because we are writing only for the parties, it is not necessary for us to discuss the
facts in any detail as they are familiar with them. On appeal, Elvey’s only contention is that
he was entitled to a downward departure from the sentencing guidelines based on
extraordinary family circumstances. Elvey, who had pled guilty in May 1999 to the sale or
transportation of marijuana, was deported to Jamaica on March 10, 2000. He claims that he
purchased a false passport and roundtrip plane ticket to Philadelphia, leaving June 7, 2001
and returning June 12, 2001, because his daughter, who was scheduled to graduate from
kindergarten, read him her valedictory speech over the phone and he felt he had to attend
her graduation ceremony.
He was arrested as he went through customs with a British passport and a false name.
The suspicion of a Customs agent was alerted because of the manner in which Elvey’s
picture had been inserted in substitution of the original picture on the passport. Elvey pled
guilty and sought the downward departure. Although the Government did not dispute any of
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Elvey’s factual contentions in the District Court, it evidently was skeptical about the
reasons given by Elvey for his entry and his statements that he would leave a few days
thereafter. The Government opposed Elvey’s departure motion, arguing that Elvey’s claim
that he intended to leave immediately after the kindergarten graduation was not credible. It
also argued that the fact that Elvey’s deportation had deprived him of the opportunity to
attend his child’s school events was not sufficiently extraordinary to merit granting him a
departure.
The District Court denied the motion for downward departure, stating:
I will, for the purpose of this sentencing, accept the facts
proffered by Mr. Elvey and on his behalf. Under 5H1.6, family ties
and responsibilities, it says “Family ties and responsibilities and
community ties are not ordinarily relevant in determining whether a
sentence should be outside the applicable guideline range.”
Ordinarily, family ties and responsibilities refers to
dependency and need for a defendant’s help and services, which would
not apply here in any material way. I don’t know if there’s any
authority that broadens this section beyond that type of dependency.
But, in any event, I do not find that, under the applicable standard, a
departure should be granted under this section.
As far as the general ground of 5K2.0 is concerned, while this
is certainly an unusual case based on the facts presented by the
defense, I do not find that it is sufficient - either by itself or in
combination with 5H1.6, sufficient to justify a downward departure.
The grounds offered for departure, that is to say Mr. Elvey’s
wanting to be present at his young daughter’s graduation and her being
honored as the valedictorian, certainly have an emotional appeal. But,
I do not find that they are so different in degree or kind from all the
other cases in which a person decides to be an illegal entrant to
warrant a departure in this case.
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Under the circumstance, I find that regrettable, but I believe
that [ ] is the correct legal determination here. The guideline range is
high for this kind of conduct, but the problem involved is a serious
one. And, for those reasons, I deny the motion for downward
departure.
App. at 43-44 (emphasis added).
Elvey argues that we should remand because it is unclear whether the District Court
recognized that it had authority to depart. The government takes a completely different
view of the District Court’s statement and we agree. Elvey points to nothing in the
colloquy with the District Court that suggests that the District Court did not recognize that
it had the power to depart for extraordinary family ties and responsibilities. Elvey argues
that because the District Court stated, in rejecting other grounds for departure that defense
counsel advanced, that it was acting “in the exercise of discretion,” but failed to make any
such statement with respect to the requested downward departure for family ties and
responsibilities, the District Court did not recognize its authority.
We are unwilling to make a general rule that unless the district courts use a magical
phrase, such as “in the exercise of my discretion,” the appeals court will not find that the
district court recognized the scope of its discretion. The law does not turn on such a
technicality. The District Court specifically stated, in the language underlined above, that
even if there were authority that broadened the section beyond the ordinary family ties and
responsibilities cases, it did not find that a departure should be granted under the cited
section. This language certainly demonstrates the District Court’s analysis of the
circumstances and its decision that the circumstances did not warrant a downward
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departure.
Because the District Court assumed that it had the authority to depart, whether under
§ 5H1.6 or § 5K2.0, and chose not to do so, we do not have jurisdiction over Elvey’s appeal
from the failure to depart downward. United States v. DeNardi, 892 F.2d 269, 272 (3d Cir.
1989).
Even if we were to review the District Court’s decision, we would not find that it
abused its discretion. An illegal reentry for the purpose of watching a daughter graduate
from kindergarten does not constitute an extraordinary family situation. Many persons who
have been deported would like to attend family ceremonies, some more significant than
graduation from kindergarten, such as graduation from college, weddings, or even funerals.
However, as the Government states in its brief, “separation from family members at such
times is part of the price that deported persons must pay for the misconduct that led to
deportation.” The courts have repeatedly upheld the district courts’ denial of a downward
departure for circumstances at least as significant but undoubtedly more so than Elvey’s
desire to observe his young daughter graduate from kindergarten. See, e.g., United States v.
Lipman, 133 F.3d 726, 729 (9th Cir. 1998) (alien reentered to visit his disabled U.S.
citizen daughter who had been sexually assaulted); United States v. Encarnacion, 239 F.3d
395, 400 (1st Cir.), cert. denied, 532 U.S. 1073 (2001) (alien reentered so that he could
see his family and enter drug rehabilitation). We reject Elvey’s contention that the District
Court erred in denying his motion for a downward departure.
For the reasons set forth above, we will affirm the judgment of conviction and
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sentence.
____________________
TO THE CLERK:
Please file the foregoing opinion
/s/Dolores K. Sloviter
Circuit Judge
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