F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 12 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 99-4155
v.
MANUEL ARMENTA-CASTRO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Utah
(D.C. No. 98-CR-500-W)
Submitted on the briefs:
Paul M. Warner, United States Attorney, Mark K. Vincent, Assistant United
States Attorney, Salt Lake City, Utah, for Appellee.
Larry E. Hazen, Attorney, Salt Lake City, Utah, for Appellant.
Before MURPHY, McKAY, and ANDERSON, Circuit Judges.
MURPHY, Circuit Judge.
Manuel Armenta-Castro pleaded guilty in federal district court to illegally
reentering the United States after a prior deportation. See 8 U.S.C. § 1326(a). As
part of the plea agreement, he admitted his prior deportation was subsequent to an
aggravated-felony conviction and that he was, therefore, subject to the enhanced
penalties set out in § 1326(b)(2)(B). Armenta-Castro requested that the district
court depart downward from the sentencing range set out in the United States
Sentencing Guidelines (“U.S.S.G.”) on the basis, inter alia, of a sentencing
disparity that exists among federal districts with respect to illegal reentry cases.
In particular, Armenta-Castro asserted that federal prosecutors in several districts
were allowing defendants to plead guilty to lesser charges, namely improper entry
charges under 8 U.S.C. § 1325(a), in exchange for a guilty plea, while the United
States Attorney in Utah “vigorously prosecutes such offenses and exacts
maximum punishment.” The district court rejected Armenta-Castro’s request,
holding that it lacked the power to depart on this basis. Exercising jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, 1 this court affirms. 2
1
This is one of those “rare” cases in which we have jurisdiction to review a
district court’s refusal to depart downward. See United States v. Castillo, 140
F.3d 874, 888 (10th Cir. 1998). The district court specifically concluded that
inter-district sentencing disparity like that at issue in this case was not a legally
valid basis for departure. See id. (“Where, because of a purely legal conclusion, a
district court refuses even to consider whether a defendant’s circumstances may
support a departure, the Sentencing Reform Act gives us the power to review.”).
After examining the briefs and appellate record, this panel determined
2
unanimously that oral argument would not materially assist the determination of
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This case presents the court with the following narrow question: does the
existence of sentencing disparities as to illegal reentry cases among the various
federal districts, where such disparities arise from varying charging and plea-
bargaining policies of the individual United States Attorneys, provide an
appropriate basis for a downward departure at sentencing? 3 In accord with the
only two circuits to have considered this issue, we answer the question in the
negative. See United States v. Banuelos-Rodriguez, 215 F.3d 969, 978 (9th Cir.
2000) (en banc) (“We hold that a district court may not grant a downward
departure from an otherwise applicable Guideline sentencing range on the ground
that, had the defendant been prosecuted in another federal district, the [d]efendant
may have benefited from the charging or plea-bargaining policies of the United
States Attorney in that district.”); United States v. Bonnet-Grullon, 212 F.3d 693,
710 (2d Cir. 2000) (“[T]he district court correctly ruled that it lacked the
authority to grant downward departures solely in order to match lower sentences
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, we
entered an order on June 23, 2000, providing that the case would be submitted
without oral argument.
3
To be clear, Armenta-Castro does not contest that he violated § 1326(a)
and was eligible for the enhanced penalties set out in § 1326(b)(2)(B). Nor does
he contest the district court’s calculation of his sentencing range pursuant to the
Sentencing Guidelines. Instead, his sole assertion on appeal is that the district
court erred as a matter of law in determining that it was without power to depart
on the basis of inter-district inconsistencies in the charging and plea bargaining of
§ 1326 cases.
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imposed in the Southern District of California as a result of the exercise of
prosecutorial discretion in that district to bring charges under § 1325(a) instead of
§ 1326.”).
Armenta-Castro notes that a primary goal of the Sentencing Reform Act of
1984 was to reduce “unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct.” 28 U.S.C. §
991(b)(1)(B). In order to achieve that goal, Armenta-Castro asserts that district
courts must be empowered to rectify sentencing disparities that arise solely
because of the disparate charging and plea bargaining practices employed by the
various United States Attorneys in the context of illegal reentry prosecutions.
Furthermore, Armenta-Castro asserts that there is nothing in either the Sentencing
Guidelines or the policy statements and official commentary by the Sentencing
Commission precluding a downward departure in these circumstances.
In contrast to Armenta-Castro’s assertions, this court concludes that the
governing provisions of the United States Code and the Sentencing Guidelines
categorically proscribe the consideration of sentencing disparities flowing from
the exercise of prosecutorial discretion in charging and plea bargaining practices.
See Bonnet-Grullon, 212 F.3d at 698-99, 707. “By statute, a district court may
not depart from an applicable Guideline range ‘unless the court finds that there
exists an aggravating or mitigating circumstance of a kind, or to a degree, not
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adequately taken into consideration by the Sentencing Commission in formulating
the guidelines that should result in a sentence different from that described.’”
Banuelos-Rodriguez, 215 F.3d at 973 (quoting 18 U.S.C. § 3553(b)) . Like the
Ninth Circuit, this court fails to see how the decision of an out-of-district federal
prosecutor to pursue a given prosecutorial strategy in dealing with § 1326
violators in that district can constitute a “mitigating circumstance” as to Armenta-
Castro or his crime. See id.; see also Bonnet-Grullon, 212 F.3d at 706 (“[T]he
departure inquiry must focus on the facts of the case in which the departure is
sought.”). The discretionary actions of out-of-district prosecutors simply do not
speak to Armenta-Castro’s individual culpability; they do not elucidate his
particular personal history or the circumstances surrounding his commission of
the crime in any way. See Black’s Law Dictionary 1002 (6th ed. 1990) (defining
“mitigating circumstances” as circumstances which “do not constitute a
justification or excuse for the offense in question, but which, in fairness and
mercy, may be considered as extenuating or reducing the degree of moral
culpability” (emphasis added)). Because the actions of out-of-district federal
prosecutors do not bear on Armenta-Castro’s moral culpability, those actions
cannot amount to mitigating circumstances allowing the district court to depart
downward. See 18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0 Commentary (“In
the absence of a characteristic or circumstance that distinguishes a case as
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sufficiently atypical to warrant a sentence different from that called for under the
guidelines, a sentence outside the guidelines range is not authorized.”).
Even assuming that inter-district policy differences in the handling of
§ 1326 prosecutions could qualify as mitigating circumstances technically
empowering the district court to depart downward under 18 U.S.C. § 3553(b), this
court agrees with the Second and Ninth Circuits that a departure is still prohibited
under the Sentencing Guidelines themselves. See Banuelos-Rodriguez, 215 F.3d
at 973-76; Bonnet-Grullon, 212 F.3d at 706-09. Without repeating at length the
helpful and thorough analysis contained in those two opinions, this court simply
notes that the heartland analysis set out in the Sentencing Guidelines is highly
case and fact specific, comparing specifically “the particular facts of the case [at
hand] against the class of cases typically within that guideline.” Bonnet-Grullon,
212 F.3d at 700; see also Banuelos-Rodriguez, 215 F.3d at 973-74. Like the
Second and Ninth Circuits, we do not believe that the actions of the various
United States Attorneys around the country in formulating prosecution strategies
to deal with the heavy caseload of illegal reentry cases adds anything at all to a
heartland analysis. See Banuelos-Rodriguez, 215 F.3d at 973-74; Bonnet-Grullon,
212 F.3d at 698-701, 706-07. Furthermore, interjection of this issue into
sentencing proceedings would mandate cumbersome and involved evidentiary
hearings in every case, see Banuelos-Rodriguez, 215 F.3d at 974, an approach
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clearly at odds with the Supreme Court’s view of departure proceedings. See
Koon v. United States, 518 U.S. 81, 98-99 (1996). The ultimate result would be
to turn on its head the Sentencing Guidelines mandate that departures be “highly
infrequent.” See Banuelos-Rodriguez, 215 F.3d at 974 (quoting U.S.S.G. Ch.1,
pt. A, subpt. 4(b)).
As a final matter, this court notes that the Sentencing Commission
specifically contemplated the impact of plea bargaining and charging practices of
federal prosecutors in drafting the Guidelines and declined to implement any
major changes in the process despite the arguments of some commentators that
the Sentencing Guidelines “failed to control and limit plea agreements [and thus]
leave untouched a ‘loophole’ large enough to undo the good that sentencing
guidelines would bring.” U.S.S.G. Ch.1, pt. A, subpt. 4(c). Instead, the
Sentencing Commission promulgated a policy statement providing that although a
court may reject a plea agreement dismissing certain charges if the remaining
charges do not reflect the seriousness of the actual offense behavior, the
Sentencing Guidelines do “not authorize judges to intrude upon the charging
discretion of the prosecutor.” See id. § 6B1.2 & Commentary. 4
4
This court recognizes that the Sentencing Commission has indicated that a
“sentencing court may control any inappropriate manipulation of the indictment
through use of its departure power.” U.S.S.G. Ch. 1. pt. A, subpt. 4(a). This
language arises, however, in the Sentencing Commission’s discussion of its
decision to implement a “charge offense” system instead of a “real offense”
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A holistic reading of the Sentencing Guidelines clearly demonstrates that
the [Sentencing] Commission considered the effects that the exercise
of prosecutorial discretion has on the uniformity of sentences. The
Guidelines allow sentencing courts to take certain limited actions in
narrow circumstances to address a prosecutor’s inappropriate
exercise of discretion. In all other circumstances, the Guidelines do
not give courts the authority to interfere with a prosecutor’s exercise
of discretion in charging and plea bargaining by departing from an
applicable Guidelines range.
Banuelos-Rodriguez, 215 F.3d at 975; see also United States v. Thomas, 884 F.2d
540, 544 (10th Cir. 1989) (“Thomas contends further that, under the guidelines,
the prosecutor can control the length of a defendant’s sentence by management of
the charging of offenses and plea bargaining practices. Thomas does not show,
however, how his rights were violated in this way.”). Because Armenta-Castro
has not argued “bad faith or discrimination on the part of the prosecutor at any
time during the criminal proceedings,” Thomas, 884 F.2d at 544, the Sentencing
system. In so choosing, the Sentencing Commission recognized that one problem
with a “charge offense” system is “the potential it affords prosecutors to influence
sentences by increasing or decreasing the number of counts in an indictment.” Id.
Nevertheless, the Sentencing Commission recognized that
the defendant’s actual conduct (that which the prosecutor can prove
in court) imposes a natural limit upon the prosecutor’s ability to
increase a defendant’s sentence. Moreover, the Commission has
written its rules for the treatment of multicount convictions with an
eye toward eliminating unfair treatment that might flow from count
manipulation.
Id. It is abundantly clear that the Sentencing Commission’s policy statements
regarding count manipulation by prosecutors is not implicated in this case. There
is absolutely no indication that the prosecutor in this case structured the charges
against Armenta-Castro in an effort to manipulate the sentencing guidelines.
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Guidelines prohibit the district court from interfering with the prosecutor’s
discretionary charging and plea bargaining decisions via the avenue of departure. 5
The judgment of the United States District Court for the District of Utah
that it is without power to depart from the otherwise applicable sentencing range
based on inter-district differences in the charging and plea bargaining decisions of
the various United States Attorneys is hereby AFFIRMED.
5
As noted by the Ninth Circuit,
the Guidelines have sought to achieve uniformity in sentencing only
by attempting to equalize the sentences of those who have engaged in
similar criminal conduct, have similar criminal backgrounds, and
have been convicted of the same offense. The uniformity the
Guidelines sought was designed to come from the specific provisions
of the Guidelines itself, not from giving judges a broad discretion to
ignore the Guidelines and increase [or decrease] sentences based on
extraneous factors such as the punishment meted out to those
convicted of other offenses.
United States v. Banuelos-Rodriguez, 215 F.3d 969, 974 (9th Cir. 2000) (en
banc).
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