United States Court of Appeals,
Eleventh Circuit.
No. 94-5012.
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Gustavo Augusto GOMEZ-VILLA, Defendant-Appellant.
July 31, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-6096-CR-KLR), Kenneth L. Ryskamp,
Judge.
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
The issue presented in this appeal is whether the district
court properly found that it could not depart downward based on
sentencing misinformation in a deportation form. We affirm.
I.
A federal grand jury sitting in the Southern District of
Florida charged appellant Gustavo Augusto Gomez-Villa ("Gomez-
Villa") in a one-count indictment with illegal reentry after
deportation following conviction for an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). Gomez-Villa pled
guilty to the charge.
The Presentence Investigation Report ("PSI") calculated Gomez-
Villa's base offense level to be 8 under U.S.S.G. § 2L1.2(a).
Because Gomez-Villa had been convicted of an aggravated felony, 16
points were added to his offense level. He was given a two-level
downward adjustment for acceptance of responsibility and an
additional one-level reduction for doing so timely, decreasing the
offense level to 21. Gomez-Villa's criminal history category was
III.
Gomez-Villa first illegally entered the United States in 1986.
He was convicted of cocaine trafficking in March 1990 and was
deported to Colombia in March of 1991. He illegally reentered the
United States in March of 1992. His other criminal conduct
included a sealed record for trafficking in cocaine in 1986. With
an offense level of 21 and a criminal history category of III, the
PSI calculated his guideline range as 46 to 57 months.
Gomez-Villa filed objections to the PSI in which he objected
to the guideline range as exceeding the maximum punishment set
forth in the immigration form presented to him upon his
deportation. Among his objections, Gomez-Villa conceded that 8
U.S.C. § 1326(b)(2) provides that the maximum penalty for an alien
who is deported following conviction for an aggravated felony is 15
years.1 Gomez-Villa also objected to his criminal history category
III as over-representing the seriousness of his criminal history.
At sentencing, Gomez-Villa argued, and the government
stipulated, that he had signed INS Form I-294, which advised that
he would be subject to a maximum two-year sentence should he
illegally reenter the United States. Thus, Gomez-Villa argued that
the government was barred from seeking a sentence greater than two
years, and requested the district court to depart downward under
U.S.S.G. § 5K2.0. Because the government's communication of
1
Although Gomez-Villa states that the maximum prison
sentence is 15 years, 8 U.S.C. § 1326(b)(2) actually provides for
imprisonment for not more than 20 years.
erroneous information regarding the penalty for illegal reentry was
not a circumstance sufficiently covered by the Sentencing
Commission ("the Commission"), the district court concluded that it
lacked the authority to depart downward and denied the request.
The district court did, however, grant a downward departure of two
criminal history categories from III to I because it thought "this
is a situation that the authors of the sentencing guidelines did
not have in mind." (R3-19). With a total offense level of 21 and
a criminal history category of I, the guideline range was reduced
to 37 to 46 months. The government objected to the downward
departure in the criminal history category but not to the lower end
of the guideline range. The district court sentenced Gomez-Villa
to 37 months' imprisonment followed by a three-year term of
supervised release. The court also ordered that upon release from
imprisonment, Gomez-Villa should be deported and not reenter the
United States without the permission of the United States Attorney
General. Gomez-Villa then perfected this appeal.
II.
Gomez-Villa contends that the Commission did not consider the
mitigating circumstance present in this case—that the government
provided Form I-294 erroneously advising aliens that they would be
subject to a two-year sentence if they illegally reentered the
country—when formulating the guidelines, and that the district
court's conclusion that it was without authority to depart on this
ground under § 5K2.0 was therefore erroneous. He also claims that
the court could have departed under 18 U.S.C. § 3553(a)(1), based
on the nature and circumstance of the offense and his history and
characteristics, because he did not purposely engage in criminal
conduct, but rather returned to provide financial support for his
children.
The government concedes that the ground at issue is a
circumstance that was not adequately considered by the Commission,
but argues that because none of the goals of the Sentencing
Guidelines would be promoted by a downward departure premised on
this ground, the district court was, in fact, without discretion to
consider a departure.
III.
Ordinarily, an appellate court may not review a district
court's refusal to grant a request for downward departure. United
States v. Hadaway, 998 F.2d 917, 919 (11th Cir.1993). However, a
district court's refusal to consider a departure is reviewable on
appeal if the district court's decision is based on the belief that
it lacked the authority to consider a departure. United States v.
Williams, 948 F.2d 706, 708 (11th Cir.1991). The district court's
determination that it lacked the authority to depart from the
Sentencing Guidelines is reviewed de novo. Id.
At sentencing, the district court refused to consider a
downward departure based on Form I-294. Thus, because the court
refused to depart, believing it lacked the authority to do so, the
district court's decision is reviewable.
A district court may make a downward departure from the
Sentencing Guidelines if a factor of a kind, or to a degree, not
adequately taken into consideration by the Commission when
formulating the guidelines exists. 18 U.S.C. § 3553(b); U.S.S.G.
§ 5K2.0. When determining whether the Commission adequately
considered a factor, the court can look only to the Sentencing
Guidelines, policy statements, and official commentary for
guidance. 18 U.S.C. § 3553(b). If the Commission did not
adequately consider a particular circumstance, then the court must
determine whether reliance on the factor is consistent with the
goals of the Sentencing Guidelines. United States v. Godfrey, 22
F.3d 1048, 1053 (11th Cir.1994). The goals of sentencing are to
reflect the seriousness of the offense, promote respect for the
law, provide appropriate punishment, deter criminal conduct,
protect the public from the defendant's criminal conduct, and
provide the defendant with needed care or treatment. 18 U.S.C. §
3553(a)(2).
IV.
This court has not had an occasion to determine whether the
Commission contemplated the situation surrounding the issuance of
Form I-294 to deported aliens when formulating the guidelines. See
U.S.S.G. § 5K2.0. Two of our sister circuits, however, have
confronted situations involving requests for a downward departure
based on Form I-294. The First and Ninth Circuits both agreed that
the Commission did not take into consideration the Form I-294
situation when formulating the guidelines. United States v. Smith,
14 F.3d 662, 666 (1st Cir.1994); United States v. Ullyses-Salazar,
28 F.3d 932, 938 (9th Cir.1994), cert. denied, --- U.S. ----, 115
S.Ct. 1367, 131 L.Ed.2d 223 (1995). We agree with the analyses of
our sister circuits. Indeed, nothing in the guidelines, policy
statements, or commentary suggests that this situation was even
remotely contemplated by the Commission.
Next, we must decide whether a departure based upon Form I-
294 is consistent with the goals of the Sentencing Guidelines. See
Godfrey, 22 F.3d at 1053. Contrary to Gomez-Villa's contentions,
a downward departure based on the government's misconduct would not
promote respect for the law because it did not encourage or
threaten Gomez-Villa into breaking the law by illegally reentering
the country. See Ullyses-Salazar, 28 F.3d at 938. Gomez-Villa,
however, intentionally violated the law by illegally reentering the
United States after deportation. Both the First and Ninth Circuits
concluded that allowing departures in similar circumstances would
be contrary to the Sentencing Guidelines' goals of deterring
criminal conduct and promoting respect for the law. Smith, 14 F.3d
at 666 (concluding that departing after Smith intentionally
committed a felony by illegally reentering the United States would
be contrary to the goals of the guidelines); Ullyses-Salazar, 28
F.3d at 938 (concluding that the only purpose served by a departure
would be to deter government misconduct and that the court does not
permit departures based on circumstances that neither bear on the
offense in question, nor speak to the offender's character). Thus,
like our sister circuits, we hold that a departure in this case
would be contrary to the guidelines' goal of deterring criminal
conduct and promoting respect of the law among those who violate
it.
As a second basis for departure, Gomez-Villa suggests that
the court could have considered a downward departure based upon the
circumstances surrounding the offense and his reasons for illegally
reentering the country, i.e., his family ties and financial
responsibilities. At sentencing, Gomez-Villa contended that he
reentered the United States only to help support his children while
they attended college, that he immediately admitted that he was an
illegal alien when found, and that his criminal history was
significantly over-represented by a criminal history category III.
The law is clear that family ties and responsibilities are not
relevant in determining sentence unless there are extraordinary
circumstances. U.S.S.G. § 5H1.6; United States v. Cacho, 951 F.2d
308, 310-11 (11th Cir.1992) (unless there are extraordinary
circumstances, a district court may not depart downward to reflect
a defendant's parental situation). Nothing in this case
demonstrates that Gomez-Villa's financial responsibilities to his
college-age children are extraordinary. Moreover, the district
court already granted a departure under § 5K2.0, concluding that
the "computations under the guidelines" significantly overstated
the seriousness of the offense. (R3-21).
Accordingly, the district court was correct in holding that it
lacked the authority to consider a departure.
For the foregoing reasons, we affirm Gomez-Villa's sentence.
AFFIRMED.