UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1881
UNITED STATES OF AMERICA,
Appellee,
v.
GERARDO CLASE-ESPINAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Selya, Cyr and Lynch,
Circuit Judges.
Owen S. Walker, with whom Federal Defender Office was on brief
for appellant.
Donald L. Cabell, Assistant United States Attorney, with whom
Donald K. Stern, United States Attorney, was on brief for appellee.
June 19, 1997
CYR, Circuit Judge. Gerardo Clase Espinal ("Clase")
CYR, Circuit Judge.
appeals the sentence imposed upon him for unlawful reentry
following deportation. See 8 U.S.C. 1326(a). The appeal
centers upon a novel government motion for downward departure
under U.S.S.G. 5K2.0, which the district court rejected. We
affirm.
I
I
BACKGROUND
BACKGROUND
A citizen of the Dominican Republic, Clase was first
deported from the United States on February 4, 1994, following a
felony conviction in a Texas state court for cocaine possession.
On October 23, 1995, he was arrested in the United States again,
and charged with unlawful reentry subsequent to an aggravated
felony conviction. See 8 U.S.C. 1326(b)(2) (1995). After
Clase entered a guilty plea, the government agreed to recommend a
downward departure under U.S.S.G. 5K2.0 in return for a stipu-
lation of alienage and deportability following his release from
prison, as well as waivers of any deportation hearing and any
appeal from the deportation order.
At sentencing, after Clase represented that he would so
stipulate, the government recommended a two-level downward
departure on the ground that the stipulation constituted conduct
not contemplated by the Sentencing Guidelines (or "Guidelines").
See generally U.S.S.G. 5K2.0. After rejecting the requested
section 5K2.0 departure as beyond its power, the district court
increased the base offense level ("BOL") from eight to twenty-
2
four, pursuant to U.S.S.G. 2L1.2(b)(2) (1995), on the ground
that the 1994 deportation had followed a conviction for an
aggravated felony.
II
II
DISCUSSION
DISCUSSION
Clase appeals the resulting forty-six month prison
sentence, challenging both the sixteen-level enhancement imposed
pursuant to U.S.S.G. 2L1.2(b)(2) and the district court ruling
that it lacked authority to depart under U.S.S.G. 5K2.0. The
government supports the section 2L1.2(b)(2) enhancement, but
joins Clase in opposition to the district court ruling denying a
section 5K2.0 departure.
A. "Aggravated Felony" Enhancement (U.S.S.G. 2L1.2(b)(2))
A. "Aggravated Felony" Enhancement (U.S.S.G. 2L1.2(b)(2))
The prior state conviction was ruled an "aggravated
felony," for section 2L1.2(b)(2) purposes, because cocaine
possession is a felony under Texas law, see Tex. Health & Safety
Code Ann. 481.115(f) (1996), and accordingly violates the
Federal Controlled Substances Act, 21 U.S.C. 801 et. seq.
Section 2L1.2(b)(2), comment. (n.7), defines "aggravated felony"
as, inter alia, "any drug trafficking crime . . . defined in 18
U.S.C. 924(c)(2)." Section 924(c)(2) defines "drug trafficking
crime" as, inter alia, "any felony punishable under the Con-
trolled Substances Act."1
1Clase argues that Congress cannot have intended that a
state felony conviction for mere drug possession satisfy the
"aggravated felony" requirement under 2L1.2(b)(2), since the
term "drug trafficking offense" clearly excludes simple drug
possession. As this claim was never raised below, we review only
3
Clase acknowledges that our recent decision in United
States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir. 1996),
forecloses the present claim, but urges nonetheless that the term
"felony," as used in 18 U.S.C. 924(c)(2), encompasses only
offenses which would constitute felonies under federal law. As
Restrepo-Aguilar directly controls, and Clase offers no tenable
basis for disregarding stare decisis, we decline to revisit the
matter. See, e.g., Williams v. Ashland Eng'g Co., Inc., 45 F.3d
588, 592 (1st Cir.) (noting that First Circuit panels generally
are bound by a prior panel decision directly on point), cert.
denied, 116 S. Ct. 51 (1995).
B. Downward Departure Under U.S.S.G. 5K2.02
B. Downward Departure Under U.S.S.G. 5K2.0
On April 28, 1995, the Attorney General of the United
States disseminated a memorandum ("the Memorandum") authorizing
United States Attorneys to recommend a departure below the
applicable guideline sentencing range in return for an admission
of alienage and deportability, as well as waivers of any adminis-
for "plain error." United States v. Olivier-Diaz, 13 F.3d 1, 5
(1st Cir. 1993).
Not surprisingly, error cannot be considered "plain" unless,
among other things, it is "obvious." Id. Since this court has
already rejected the very contention asserted by Clase on appeal,
see United States v. Restrepo-Aguilar, 74 F.3d 361, 364 n.5 (1st
Cir. 1996), we are in no position to conclude that the district
court ruling constituted "plain error" in these parts. Olivier-
Diaz, 13 F.3d at 5. The remaining challenges to the
2L1.1(b)(2) ruling merit no discussion.
2Although a refusal to depart is not ordinarily appealable,
see United States v. Tucker, 892 F.2d 8, 11 (1st Cir. 1989), the
rule is otherwise if, as here, the district court refused on the
ground that it lacked the authority to depart. See United States
v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).
4
trative deportation hearing and any judicial appeal from the
resulting deportation order. The Memorandum indicates that a
downward departure based on such cooperative conduct on the part
of alien criminal defendants is permissible because it is a
"mitigating circumstance of a kind, or . . . degree, not ade-
quately taken into consideration by the Sentencing Commission . .
. .").
The United States Attorney for the District of Massa-
chusetts accordingly recommended a two-level downward departure
under section 5K2.0 based on the agreement by Clase to stipulate
to deportation and waive any related appeal. The district court
rejected the recommendation.
I am not satisfied that there are
grounds within Section 5K2.0 to permit depar-
ture based upon . . . a representation [that
Clase would stipulate to deportation, etc.].
I make that determination as a matter of law.
If I have such power, then I need to be in-
structed that I do by another court . . . .
[U]pon my own independent determination, I
find the use of Section 5K2.0 to permit a
downward departure on the basis of the con-
cession of deportability and an agreement not
to contest it is not a matter that was left
unconsidered by the Sentencing Commission.
Certainly, the specific factual circumstances
were not considered by the Sentencing Commis-
sion, but the larger issue of deportation and
the mechanisms for deportation, agreements to
ameliorate the difficulties that are adminis-
trative burdens for the government, are mat-
ters within the scope of the "heartland"
calculations of the Sentencing Commission,
generally, and in connection with deporta-
tion.
I view the Attorney General's willing-
ness, in certain circumstances, to agree to
such a downward departure to be in the form
of a shadow sentencing guideline, unautho-
5
rized by relevant law[,] which allocates
responsibilities in this area and [is] not
entitled to any particular weight. (Emphasis
added.)3
As posed by the parties and addressed by the district
court, therefore, the question before us turns upon an abstract
legal principle: whether the stipulation and waiver relating to
alienage and deportability permit a section 5K2.0 departure based
on the conclusory departure rationale propounded in the Memoran-
dum.
The government and the defendant insist on appeal that
the stipulation and waiver relating to alienage and deportability
remove the case from the "heartland." See United States v.
Rivera, 994 F.2d 942, 947 (1st Cir. 1993) (Breyer, C.J.). We
agree that the proffered departure ground is not expressly
forbidden, discouraged, or encouraged by the Sentencing Guide-
lines. See Koon v. United States, 116 S. Ct. 2035, 2045 (1996)
(quoting Rivera, 994 F.2d at 949); see also U.S.S.G. 5H1.1
5H1.12; 5K2.1 5K2.18. Yet we agree with the district court
that it is insufficient, as a matter of law, to warrant a down-
ward departure.
3Generally speaking, a decision not to depart is reviewed
only for abuse of discretion. Koon v. United States, 116 S. Ct.
2035, 2046-47 (1996); United States v. Cali, 87 F.3d 571, 579-80
(1st Cir. 1996). Nevertheless, as noted in Koon, "[a] district
court by definition abuses its discretion when it makes an error
of law." 116 S. Ct. at 2047. Moreover, the government agreed it
was "essentially taking a legal position . . . that stipulated
deportations are, as a matter of law, something not fully contem-
plated by the Sentencing Commission in the preparation of the
guidelines and subject to a downward departure through Section
5K2.0." Therefore, the district court ruling must be reversed if
it constituted legal error.
6
The sentencing court may resort for decisional assis-
tance to 28 U.S.C. 991-998 (i.e., the Sentencing Commission
enabling act itself), 18 U.S.C. 3553, the Guidelines, including
the policy statements and official commentary, as well as to
relevant case law. Moreover, courts must bear in mind the expert
.
Sentencing Commission ("Commission") assessment that departures
based on judicial determinations that a proffered ground for
departure was not adequately considered by the Commission are to
be regarded as "highly infrequent." See U.S.S.G. Ch. 1, pt. A,
intro. comment. 4(b); see also Koon, 116 S. Ct. at 2045. Absent
a guideline or commentary directly addressing a proffered ground
for departure, therefore, sentencing courts must examine the
"structure and theory of [the] relevant individual guidelines and
the Guidelines taken as a whole," with a view to whether the
proffered ground makes the case sufficiently atypical to remove
it from the "heartland." Koon, 116 S. Ct. at 2045 (quoting
Rivera, 994 F.2d at 949).
1. Whether Stipulated Deportation Constitutes
1. Whether Stipulated Deportation Constitutes
a Mitigating Circumstance "of a kind" Not
a Mitigating Circumstance "of a kind" Not
Contemplated by the Sentencing Commission?
Contemplated by the Sentencing Commission?
An aggravating or mitigating circumstance falls within
the "heartland" unless it is "of a kind" not adequately consid-
ered by the Commission or "present to a degree" neither readily
envisioned nor often seen in connection with such an offender or
offense of conviction. See 18 U.S.C. 3553(b); U.S.S.G.
5K2.0; United States v. Sklar, 920 F.2d 107, 115 (1st Cir. 1990).
We are loath to presume, as a general matter, that the Commission
7
either overlooked or inadequately considered the statutory and
regulatory structures upon which an informed sentencing treatment
of immigration offenses significantly depended. See, e.g.,
U.S.S.G. 2L1.2 comment. (citing to 8 U.S.C. 1326); id.
comment. (n.4) (describing 16-level enhancement for alien previ-
ously deported after conviction for aggravated felony). Rather,
given its mandate, see 28 U.S.C. 994, as well as its institu-
tional expertise and experience, see id. 995, we think it is
quite clear that the Commission would have considered that an
alien defendant, particularly one convicted of unlawful reentry
subsequent to deportation for an aggravated felony, almost
certainly would be deported again. See 8 U.S.C. 1251(a)(1)(B)
(alien who has entered without inspection), 1251(a)(2)(A)(iii)
(alien convicted of aggravated felony after admission) (1996)
(amended sections presently codified at 8 U.S.C. 1227 (1997)).
Furthermore, we believe it would be farfetched to
suppose that the Commission overlooked the central reality that
in all likelihood deportation would occur by normal operation of
law as a matter of course irrespective of the alien
defendant's consent following a conviction for illegal reentry
subsequent to deportation for an aggravated felony. Cf. United
States v. Restrepo, 999 F.2d 640, 647 (2d Cir.) (even absent any
indication in the Guidelines that Congress or the Commission
"considered the interplay between deportability and sentencing
provisions," deportability is not a ground for departure because,
8
among other reasons, "it is difficult to believe that the Commis-
sion was not conscious that a large number of defendants sen-
tenced in the federal courts are aliens"), cert. denied, 510 U.S.
954 (1993); United States v. Ceja-Hernandez, 895 F.2d 544, 545
(9th Cir. 1990) (per curiam) ("When setting the offense level for
entry after deportation, the Sentencing Commission would certain-
ly have been aware of the practice of promptly deporting aliens
after they serve such sentences.").
Similarly, the facilitative nature of stipulated
deportations does not strike us as a circumstance "of a kind"
left unconsidered by the Commission. Several guidelines treat
stipulated deportations in the same manner as formal deportations
for purposes of subsequent prosecution. For example, sections
2L1.1(b)(3) and 2L2.2(b)(1) identify a prior deportation, whether
voluntary or involuntary, as a "specific offense" characteristic.
See also U.S.S.G. App. C, amend. 196 (1995) (likewise discussing
voluntary as well as involuntary deportations). Although these
provisions simply indicate that prior deportations, voluntary as
well as involuntary, are aggravating "specific offense" charac-
teristics, their presence in the Guidelines conspicuously demon-
strates Commission awareness not only that numerous illegal
aliens become enmeshed in the criminal justice system, but that
many are expelled from the United States without ever undergoing
formal deportation proceedings.4 Moreover, given the large
4See Immigration and Naturalization Serv. v. Lopez-Mendoza,
468 U.S. 1032, 1044 (1984) (noting that approximately 97.5% of
all illegal aliens are deported from the United States voluntari-
9
numbers of illegal aliens expelled from the United States each
year without undergoing formal deportation proceedings,5 we
consider it exceedingly improbable that the Commission either
overlooked stipulated expulsions altogether or regarded their
facilitative value to be "of a kind" warranting a downward
departure. These analogous data indicate that an alien criminal
defendant with no plausible basis for contesting deportation
particularly one convicted of illegal reentry subsequent to
deportation for an aggravated felony does not meet the
atypicality requirement for a section 5K2.0 departure simply by
relying upon whatever administrative convenience presumably may
result from a stipulated deportation. Cf. United States v.
ly with no formal adjudication of status by the Immigration and
Naturalization Service ["I.N.S."]). Indeed, the data consistent-
ly indicate that only about 3% of all apprehended aliens who are
expelled ever undergo a deportation hearing. See Immigration and
Naturalization Service, 1993 Statistical Yearbook 158 tbl.59
(1994); Immigration and Naturalization Service, 1987 Statistical
Yearbook 124 tbl.70 (1988) (tables reflecting that, in 1993, only
about 3% of all apprehended aliens required to leave the United
States were deported after a hearing. The data are similar in
other years: 3.3% in 1992, 2.6% in 1991, and 2% in 1987.). The
vast majority of illegal aliens are subjected to a nonadversarial
procedure known as "voluntary departure with safeguards" (admis-
sion of illegal status, agreement to leave, and retention in
custody pending a voluntary departure observed by an I.N.S.
agent) or submit to a "required departure under docket control"
(after I.N.S. officer starts deportation file, alien admits
illegal status and accepts voluntary departure). See id. at
xxxix. I.N.S. does not publish data regarding stipulated depor-
tations, as distinguished from stipulated departures requiring no
formal administrative adjudication.
5In 1991, for example, 28,759 aliens were deported and
1,060,745 were required to depart (totaling 1,089,504 expelled).
1993 Statistical Yearbook 158 tbl. 59; 1992: 38,202 deported and
1,105,160 required to depart (totaling 1,143,362 expelled), id.;
1993: 36,686 deported and 1,242,169 required to depart (totaling
1,278,855 expelled), id.
10
Barber, 93 F.3d 1200, 1205 (4th Cir. 1996) (vacating upward
departure for using firearm to effect second degree murder,
because "Commission could not have failed to take into account .
. . that that offense is commonly committed by use of a gun . . .
. No scenario could be more typical, more within the heartland,
of second-degree murder than death by one weapon or another,
especially by firearm.").6
We therefore conclude that the Sentencing Commission
was fully cognizant that virtually all alien criminal defendants,
convicted under 8 U.S.C. 1326(a) and sentenced pursuant to
U.S.S.G. 2L1.2, would be subjected to deportation and that many
undoubtedly would stipulate to deportation. Accordingly, we
hold, at least in the absence of a colorable, nonfrivolous
defense to deportation, that the proffered ground for departure
under U.S.S.G. 5K2.0 does not constitute a mitigating circum-
stance of a kind not adequately considered by the Commission.
2. Whether the Stipulated Deportation
2. Whether the Stipulated Deportation
Constituted Mitigation "to a degree"
Constituted Mitigation "to a degree"
Not Contemplated by the Commission?
Not Contemplated by the Commission?
6An analogous guideline provision likewise bolsters our
assessment. Section 3E1.1(a) permits a two-level downward
adjustment for clearly demonstrating acceptance of responsibility
for the offense of conviction. U.S.S.G. 3E1.1(a). Neverthe-
less, "a defendant who . . . frivolously contests [] relevant
conduct that the court determines to be true has acted in a
manner inconsistent with acceptance of responsibility." Id. com-
ment. (n.1(a)) (emphasis added). By the same token, we think a
downward departure for simply stipulating to deportation follow-
ing a conviction for illegal reentry subsequent to an aggravated
felony, unaccompanied by any suggestion that the alien defendant
possessed a nonfrivolous defense to deportation, would represent
a disproportionate reward for whatever modest administrative
benefit might obtain.
11
A mitigating circumstance is present to a degree not
contemplated by the Commission only if it is portentous enough to
make the case meaningfully atypical. United States v. Mariano,
983 F.2d 1150, 1154 (1st Cir. 1993) ( 5K2.0 serves as a "safety
valve" for "important, atypical" factors which remove the case
from the "heartland"); Sklar, 920 F.2d at 115 n.7 (proffered
circumstance "must have weight . . . it must be sufficiently
portentous to move the case out of the heartland for the offense
of conviction."); United States v. Williams, 891 F.2d 962, 967
(1st Cir. 1989) ("departures must be based upon meaningful
atypicality; . . . judges can always flyspeck individual cases to
find some sort of idiosyncracy. . . . If the guidelines are to
provide a coherent system of criminal sentencing, the trial
court's right to depart, up or down, must be restricted to those
few instances where some substantial atypicality can be demon-
strated.") (emphasis added).
Absent some mitigating circumstance not suggested here,
no substantial atypicality is demonstrated where an alien defen-
dant simply stipulates to deportation and no nonfrivolous defense
to deportation is discernible. Compare United States v. Khan,
920 F.2d 1100, 1107 (2d Cir. 1990) (discussing potential downward
departure for saving government informant's life), cert. denied,
499 U.S. 969 (1991). As the district court noted, the
government's conclusory departure recommendation, simpliciter,
does not purport to demonstrate that the facilitative conduct
relied upon even constituted substantial assistance warranting
12
sentencing leniency. Cf. United States v. Cardenas, 896 F.2d
317, 320 (8th Cir. 1990) (holding that government's acknowl-
edgement that defendant accepted personal responsibility does not
control sentencing determination); United States v. Nunley, 873
F.2d 182, 187 & n.6 (8th Cir. 1989) (same); United States v.
Forbes, 888 F.2d 752, 754 (11th Cir. 1989) (sentencing court not
bound by government stipulation that defendant was minor partici-
pant). Consequently, there is no indication that any administra-
tive convenience to the government constituted a mitigating
circumstance "to a degree" not adequately considered by the
Commission. See United States v. Romolo, 937 F.2d 20, 24-25 (1st
Cir. 1991); Sklar, 920 F.2d at 115. More to the present point,
the stipulation in this case must be considered de minimis from
the standpoint of its assistance in alleviating any administra-
tive burden upon the government, since Clase has no discernible
defense to deportation.
Thus, the parties essentially are left with their
implicit contention that any stipulated deportation constitutes
an extraordinary mitigating circumstance, for no other reason
than that it bears the government's endorsement and dispenses
with an administrative hearing. However, were downward depar-
tures permitted simply on the conclusory representations in the
Memorandum, without regard to whether the alien defendant has a
nonfrivolous defense to deportation, individualized guideline
sentencing indeed could be undermined by what the district court
aptly termed a "shadow guideline" that would erode the prescribed
13
BOL in any alien-criminal defendant's case to which the govern-
ment chose to apply the Memorandum, simpliciter.7
The district court prudently recognized that sentencing
courts may not defer to unsubstantiated prosecutorial recommenda-
tions as adequate grounds for section 5K2.0 departures. We note
as well that even the indispensable government motion for a
"substantial assistance" departure under U.S.S.G. 5K1.1 simply
presents the matter for judicial consideration. See Mariano, 983
F.2d at 1155 ("[T]he decision whether to depart after the govern-
ment has made such a [ 5K1.1 substantial assistance] motion . .
. falls squarely within the district court's domain. The dis-
trict court is not obligated to depart downward simply because a
grateful prosecutor prefers a lighter sentence."). The district
court correctly determined that it lacked authority to depart on
the ground that the stipulated deportation constituted mitigation
to a degree neither readily envisioned nor often seen in connec-
tion with such an offender or offense of conviction. See
Mariano, 983 F.2d at 1154; Sklar, 920 F.2d at 115 n.7.
III
III
CONCLUSION
CONCLUSION
With no record indication that this case is meaning-
fully atypical in any material respect, see id. at 115, the
7The Memorandum itself simply announces that the "Adminis-
tration is committed to effecting the deportation of criminal
aliens from the United States as expeditiously as possible. You
[i.e., United States Attorneys] can make a major contribution to
this effort by effectively using available prosecutive tools for
dealing with alien defendants." See also pp. 4-5 supra.
14
section 5K2.0 departure recommendation lacked a cognizable legal
basis. Accordingly, it is unnecessary to determine whether a
stipulation of alienage and deportability, accompanied by the
attendant waivers, may ever serve as an adequate ground for
downward departure under section 5K2.0. See Koon, 116 S. Ct. at
2051 ("with few exceptions, departure factors should not be ruled
out on a categorical basis").
The district court judgment is affirmed.
15