United States v. Valdez-Trujillo

HOLSCHUH, District Judge.

This case involves the question of whether “cultural assimilation” is a legal ground for a downward departure from an imprisonment range fixed by the Sentencing Guidelines, a question which, as the majority notes, has not yet been answered by the Sixth Circuit. Because the majority concludes that the record does not indicate that the district court’s denial of defendant’s motion for a downward departure was based on a belief that it lacked the authority to grant such a departure, the appeal is dismissed. The question of “whether a district court in our circuit even has the authority to depart (on cultural assimilation grounds)” is specifically left unanswered. Majority opinion at 6. It is because I believe this important question was expressly raised in the district court, but was not discussed, much less ruled upon, by the district judge, I would reverse and remand for a determination of this legal question in the first instance by the district court.

The issue of cultural assimilation as a basis for a downward departure was initially brought to the district judge’s attention by the Rule 11(e)(1)(c) plea agreement. In that agreement the defendant reserved the right to argue for a downward departure on three grounds: (1) the defendant’s family ties and responsibilities, (2) his cultural assimilation, and (3) his return to the United States being a lesser harm than the destruction of his family. The plea agreement also stated that the government did not agree to any departure and would oppose such a motion. JA at 78, 113-14. The presentence investigation report prepared for the court referred to this provision of the plea agreement, and also alerted the Court to the fact that defendant would seek such a departure at the time of sentencing. JA at 122. .

Prior to the sentencing hearing, the defendant filed a Sentencing Memorandum in which these three grounds for a departure were argued. With respect to cultural assimilation, the defendant relied upon cases from two circuits that have recognized cultural assimilation as a legal ground for a downward departure, United States v. Lipman, 133 F.3d 726 (9th Cir. 1998) and United States v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir.1998), JA at 4. The government filed a brief in response to defendant’s sentencing memorandum in which the government argued that cultural assimilation is not a valid basis for a downward departure, because, according to the *556government, cultural assimilation “relates to and is dependent upon his (the defendant’s) national origin” and “Guideline § 5H1.10 flatly bars the consideration of such factors, as they are not ‘relevant in the determination of a sentence.’ ” JA at 34.1 With respect to the separate ground of family ties and responsibilities, the government argued that the circumstances of this case do not take it out of the heartland of cases covered by the guidelines and, therefore, § 5H1.6, which states that family ties and responsibilities are not ordinarily relevant in determining whether a sentence should be outside the guideline range, is applicable in this case.

At the sentencing hearing, the district judge did not resolve the legal issue of whether cultural assimilation is or is not a valid basis for a downward departure in illegal re-entry cases, although this issue was again raised by the defense counsel:

With that in mind and using some of the provisions of the guidelines which exist, and I draw the Court’s attention to 501.6,2 several courts mostly, the Lip-man court, the Ninth Circuit case, have found that in using as a basis the family responsibility grounds for departure, that aliens, in certain circumstances, in circumstances where there’s something that’s been called cultural assimilation, that that is an appropriate authorized ground for a sentencing Court to grant a downward departure then, in the event the Court finds that that condition exists. JA at 90.

According to my reading of the sentencing transcript, the district judge discussed, and resolved, only the question of whether the defendant’s family ties and responsibilities were of a nature as to take this case out of the heartland of cases considered by the Sentencing Commission — a distinctly different ground for departure from cultural assimilation. The district judge correctly, in my view, noted that the defendant was going to be deported to Mexico and would not be returning to Chicago to support his family who lived there.

Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status (Policy Statement) These factors are not relevant in the determination of a sentence.
THE COURT: Mr. Tholen, let me ask you a question.
MR. THOLEN: Yes.
THE COURT: What purpose is served by a downward departure from your client’s perspective?
One of two things is going to happen. He’s either going to be incarcerated for X period of time or X plus Y period of time and then he’s going to be deported.
í|? Hí ❖ ^ ❖ %
THE COURT: My point is this. I don’t see what purpose in terms of family ties, a downward departure is going to serve.
Mr. Valdez-Trujillo’s now [on] his third conviction. He is most certainly going to be deported—
MR. THOLEN: That’s correct.
THE COURT: — following his period of incarceration. So relying upon family ties and obligations to his family as a bread winner, seems to me, irrelevant.

JA at. 93-94

íjí íjí ^ ^ #
THE COURT: Let me ask you a question, again, Mr. Tholen. You’re missing the point here. I’m trying to go to the bottom line.
Even if I were — which I’m not going to do, even if I were to decide not to *557incarcerate him at all but, rather, order INS to make a determination as to his deportation status, that he would be deported rather than incarcerated, as I said, I’m not considering that, I don’t understand how that serves the policy objectives you’re relying on upon (sic) for a downward departure. He’s not going to be supporting his family, he’s going back to Mexico.
MR. THOLEN: What I suggest Your Honor—
THE COURT: He’s not going to be with his family. Those are things I can’t do anything about.

JA at 95-96.

In ruling on defendant’s motion for a downward departure, the district judge said:

I simply don’t find any basis under the law to grant a downward departure, given the defendant’s criminal history and given the fact that the defendant, in any event, is going to be deported immediately upon the completion of his term of incarceration.
The Court cannot justify a downward departure for purposes of family responsibilities here in this country when, in fact, as soon as the defendant is released he is going to be removed from his family anyway and deported back to Mexico.
Now the defendant says that his family is going to join him down there, that may be them intent now.
But at any rate, it seems to the Court that is somewhat speculative as to whether or not they really will join him in two years or three years of four years after he was (sic) completed, whatever sentence the Court gives him.
But beyond that, there is simply no policy basis here, given the defendant’s record and given his intentional reentry as a deported alien, to depart downward in any of the basis that — any of the bases that the defense and defendant has relied upon.

JA at 105-106.

From my reading of the sentencing hearing transcript, the district judge (1) focused on and decided the issue of whether defendant’s family ties and responsibilities justified a downward departure, and found that these factors did not warrant a departure in view of defendant’s ultimate deportation to Mexico; (2) did not decide the contested issue of law of whether cultural assimilation is a legal ground for departure; and (3) found in a conclusory manner that there was no “policy basis,” because of defendant’s conduct, to depart downward on any of the bases relied upon by the defendant.

The majority finds “that the district court knew that it had the authority to depart downward on the grounds asserted and simply chose not to based on the circumstances of Defendant’s particular case.” Majority opinion at 5.1 cannot find any evidence in the transcript that the district judge knew that he had authority to depart downward on the basis of cultural assimilation, a contested question of law that was raised and briefed by the parties and which has not yet been decided by the Sixth Circuit Court of Appeals. It is, in short, unclear whether the district judge believed — as argued by the government— that cultural assimilation is not a legal basis for a downward departure in cases of this nature, or whether the district judge believed — as the Ninth Circuit held in the Lipman case — that cultural assimilation is a legal basis for a downward department, but declined to depart downward because of defendant’s conduct which, in the court’s view, foreclosed any ground for a downward departure.

I am aware that the Court may only review a denial of a motion for downward departure if the district judge incorrectly *558believed that he or she lacked the authority to consider defendant’s mitigating circumstances as well as the discretion to deviate from the guidelines. See United States v. Coleman, 188 F.3d 354, 357 (6th Cir.1999). I am equally aware that it is not necessary for the district judge to state affirmatively that he or she possesses the power to make a downward departure, but declines to do so. See United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995). These decisional rules are appropriately applied in the typical case involving a District court’s denial of a motion for a downward departure.

In a typical case, the legal ground for a downward departure is either not contested or, if contested, is decided by the district judge. In the latter situation, if the district judge decides that the asserted ground for departure is not a legal ground and on this basis refuses to depart, the defendant may appeal. If the district judge decides that the asserted ground for departure is a legal ground and departs on this basis, the government may appeal. The present case, however, is not a typical case, because the contested issue of whether cultural assimilation is a legal ground for departure was never decided by the district judge.

The Lipman case relied upon by defendant is similar to the present case.' See 133 F.3d 726. It, too, involved an alien who reentered the United States after being deported for a felony conviction in violation of 8 U.S.C. § 1326 and who was sentenced pursuant to § 2L1.2 of the Senteneing Guidelines.3 The defendant pointed out that he had been brought to the United States as a child, had attended schools here, was married, and his entire family resided in the United States. He contended that his illegal reentry into this country was motivated by his cultural, emotional and psychological ties to this country developed over the years he had been here. He sought a downward departure based on his cultural assimilation into American society.

On appeal from the district court’s denial of his motion, the Ninth Circuit held that:

Because the Sentencing Commission has never addressed or proscribed “cultural assimilation” per se as a factor that may justify departure, we hold that a sentencing court has authority under U.S.S.G. § 5K2.0 to consider evidence of cultural assimilation.

Id. at 730.

The Lipman court recognized that under § 5H1.6 family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range, but pointed out that under § 5K2.0 such circumstances may be relevant if “present to an unusual degree” such that the case is distinguished “from the heartland cases ... in a way that is important to the statutory purposes of sentencing.” See Lipman, 133 F.3d at 730. The court found that cultural assimilation may be relevant to § 2L1.2 if a district court finds *559that a defendant’s unusual cultural ties to the United States — rather than ordinary economic incentives — provided the motivation for the defendant’s illegal reentry into the United States, and that a defendant’s culpability might be lessened if his motives were familial or cultural rather than economic. Cultural assimilation, while “akin to the factor of ‘family and community ties’ ” discussed under § 5H1.6, serves to mitigate defendant’s culpability for the offense and, in a proper case, would be a valid ground for a downward departure. The departure is not based on a need for the defendant to support his family, but on the defendant’s degree of culpability for the offense of illegally reentering the United States.

Unlike the present case, the court in Lipman recognized its authority to consider cultural assimilation as a potential basis for departure. The district court, however, denied defendant’s motion because, after assessing the specific facts of the defendant’s case, the court found that Lipman’s family ties were not so unusual as to justify a downward departure. Moreover, the district court in Lipman “made its decision after reviewing a presentence report that recognized the court’s authority to depart downward on the basis requested, but disputed the appropriateness of a departure on the facts presented.” Id. at 732.

In the present case, the presentence report simply pointed out that a cultural assimilation ground for departure would be argued, and, as noted earlier, whether such a factor is a valid ground for departure was sharply contested by the government prior to the sentencing hearing.

In view of the fact that this Court has not yet decided whether cultural assimilation is a factor that may mitigate a defendant’s culpability and justify a downward departure, and because this question was presented to but not decided by the district court, I would vacate the sentence and remand this case to the district court with direction to conduct a new sentencing hearing for the purpose of determining whether cultural assimilation is a valid ground for departure. If the district court should determine that it is a valid ground for departure, then the district court, in the exercise of it discretion, can either grant or deny the motion for a downward departure and sentence the defendant accordingly. The unresolved issue would thus be resolved, and the stage would be set for the possibility of an appeal to this Court for a determination of a legal question, yet to be decided in this Circuit, that is of obvious importance to the sentencing process in illegal re-entry cases.

. § 5H1.10 provides:

. The reference to § 501.6 is an obvious typographical error. The correct reference is § 5H1.6.

. § 2L1.2 provides:

Unlawfully Entering or Remaining in the United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) If the defendant previously was deported- after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greater):
(A) If the conviction was for an aggravated felony, increase by 16 levels.
(B) If the conviction was for (1) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offense, increase by 4 levels.