IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-40048
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODOLFO ANTONIO GARAY,
also known as
Rodolfo Foskin
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________
December 7, 2000
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Rodolfo Antonio Garay (“Garay”) challenges
the sentence imposed by the district court after his conviction for
being an alien unlawfully found in the United States following
deportation, in violation of 8 U.S.C. § 1326(a) and 1326(b). The
district court denied Garay’s request for a downward departure from
the Sentencing Guidelines on the ground that Garay’s status as a
deportable alien did not constitute a basis for departure.
Agreeing with the district court that alienage is not a basis for
downward departure in this immigration case, we affirm.
I.
Facts and Proceedings
Garay was convicted following a bench trial for being an alien
unlawfully found in the United States after deportation.1 In his
objections to the presentence investigation report, Garay urged the
district court to depart downward from the Sentencing Guidelines
because “he is an alien and will be deported.” Garay also
contended that he merited a downward departure because as an alien,
he would face more severe conditions of incarceration because of
his ineligibility for Bureau of Prisons programs such as drug and
alcohol treatment, prison camp, and release to a halfway house.
Garay pressed his request for downward departure again at the
sentencing hearing. The district court denied the request, stating
that there was nothing atypical about Garay’s case that would take
it outside the “heartland” of immigration cases to which the
guideline applied.2 When counsel for Garay inquired as to whether
Garay’s request was denied “on the basis that alienage does not
constitute a probable basis for downward departure,” the district
court answered in the affirmative. The district court proceeded to
1
See 8 U.S.C. § 1326(a) and 1326(b).
2
The Guidelines explain that “[t]he Commission intends the
sentencing courts to treat each guideline as carving out a
‘heartland,’ a set of typical cases embodying the conduct that each
guidelines described. When a court finds an atypical case, one to
which a particular guideline linguistically applies but where the
conduct differs significantly from the norm, the court may consider
whether a departure is warranted.” See 1995 U.S.S.G. ch. 1, pt. 1,
intro. comment. 4(b).
2
sentence Garay to 70 months of imprisonment,3 together with a
three-year term of supervised release and a $100 special
assessment. Garay timely appeals the sentence imposed by the
district court, and asks us to vacate his sentence and remand for
resentencing.
II.
Analysis
A. Standard of Review
A defendant’s general dissatisfaction with his sentencing
range provides no ground for review of a district court’s refusal
to grant a downward departure.4 We have jurisdiction only if the
refusal was in violation of the law.5 A refusal to depart downward
is a violation of the law only if the district court’s refusal is
based on the mistaken belief that the court lacked discretion to
depart.6 We review a district court’s decision not to depart from
the Guidelines for abuse of discretion.7
B. Issues
Garay contends that his sentence must be vacated because the
district court erroneously believed that it lacked authority to
3
Garay’s prison term was at the low end of the applicable
Sentencing Guidelines range of 70-87 months.
4
United States v. DiMarco, 46 F.3d 476, 477 (5th Cir. 1995).
5
Id.
6
United States v. Burleson, 22 F.3d 93, 95 (5th Cir. 1994).
7
Koon v. United States, 518 U.S. 81, 98-100 (1996).
3
depart downward on the basis of his status as a deportable alien.8
He concedes that this argument is foreclosed by our decision in
United States v. Nnanna,9 in which we held that, in the case of a
deportable alien convicted of bank fraud, “[c]ollateral
consequences, such as the likelihood of deportation or
ineligibility for more lenient conditions of imprisonment, that an
alien may incur following a federal conviction are not a basis for
downward departure.”10 Garay argues, however, that Nnanna must be
reconsidered in light of the Supreme Court’s subsequent decision in
Koon v. United States,11 which held that federal courts can no
8
A district court may depart from the applicable Sentencing
Guideline range only if “the court finds that there exists an
aggravating or mitigating circumstance of a kind, or to a degree,
not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a
sentence different from that described.” 18 U.S.C. § 3553(b). The
Guidelines enumerate certain factors that can never be bases for
departure, such as race and religion, but do not otherwise limit,
as a categorical matter, potential bases for departures. See Koon,
518 U.S. at 94; see also 1995 U.S.S.G. § 5H10 (prohibiting
consideration of race, sex, national origin, creed, religion, and
socio-economic status).
If a basis for departure, such as alienage, is not mentioned
in the Guidelines, a district court must, “after considering the
structure and theory of both relevant individual guidelines and the
Guidelines taken as a whole, decide whether it is sufficient to
take the case out of the Guideline’s heartland.” See Koon, 518
U.S. at 94 (quotations and citation omitted). The Commission has
advised that departures based on grounds not mentioned in the
Guidelines will be “highly infrequent.” See 1995 U.S.S.G. ch. 1,
pt. A, p.6.
9
7 F.3d 420 (5th Cir. 1993).
10
Id. at 422.
11
518 U.S. 81 (1996).
4
longer categorically proscribe a basis for departure unless the
Guidelines have explicitly forbidden consideration of that factor.12
Consequently, Garay maintains that in light of Koon, our
decision in Nnanna, which categorically proscribed alienage and its
attendant consequences as a basis for downward departure, is no
longer good law. Garay does not argue that his case is “atypical”
or that the district court’s refusal to depart downward was
otherwise in violation of the law. Rather, he argues that his
sentence should be vacated and remanded for reconsideration in
light of Koon’s directive that any factor not mentioned in the
Guidelines can serve as a potential basis for departure.
Garay relies on decisions from other circuits in asserting
that Koon requires us to instruct the district court to consider
his alienage as a basis for downward departure on remand.13 But
these cases, which involved aliens convicted of crimes other than
immigration offenses,14 are clearly distinguishable from the instant
12
Id. at 109 (1996).
13
See United States v. DeBeir, 186 F.3d 561, 69 (4th Cir. 1999)
(“Although the Guidelines prohibit reliance on national origin . .
. they do not mention alienage as a departure factor; it therefore
serves as a potential basis for departure”) (citation omitted);
United States v. Farouil, 14 F.3d 838, 847 (7th Cir. 1997) (same);
see also United States v. Smith, 27 F.3d 649, 655 (D.C. Cir.
1994)(holding, prior to Koon, that downward departure may be
appropriate if the defendant’s status as a deportable alien is
likely to cause a “fortuitous increase” in the severity of his
incarceration).
14
DeBeir was convicted of traveling in interstate commerce with
the intent to engage in a sexual act with a minor; Farouil was
convicted for knowingly importing heroin into the United States.
5
case, in which Garay’s status as a deportable alien, as an inherent
element of his crime, has already been considered by the Commission
in formulating the applicable guideline.15
For example, in Farouil, the Seventh Circuit concluded that
alienage could serve as a basis for departure in Farouil’s drug
case, but nevertheless affirmed its decision one week earlier in
United States v. Gonzalez-Portillo16 that alienage is not a basis
for departure in § 1326 cases.17 In Gonzalez-Portillo, the Seventh
Circuit reasoned that because deportable alien status is an element
of the crime to which the guideline applies, alienage was
necessarily “taken into consideration by the Sentencing Commission
in formulating the guideline.”18 The Seventh Circuit concluded that
15
As the Ninth Circuit reasoned in United States v. Martinez-
Ramos, 184 F.3d 1055, 1058 (9th Cir. 1999), all defendants found
guilty of violating § 1326 will be deportable aliens, subject to
the same sentencing constraints that apply to all other defendants
found guilty of violating the same statute. Thus, insofar as
sentencing for violations of § 1326 is concerned, there is “not
even an arguable ‘need to avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of
similar conduct.’” Id. (quoting 18 U.S.C. § 3553(a)(6)).
16
121 F.3d 1122 (7th Cir. 1997).
17
Farouil, 124 F.3d at 846.
18
121 F.3d at 1124-25 (quotations and citation omitted). To
the extent that Nnanna categorically proscribed alienage and its
attendant consequences as a basis for downward departure, Garay’s
assessment of its limited precedential value in the wake of Koon is
correct. Nnanna, however, does not control the instant case.
Nnanna involved an offense (bank fraud) in which the defendant’s
status as a deportable alien was irrelevant, whereas Garay was
convicted of an immigration offense in which his status as a
deportable alien was part and parcel of his crime.
6
even under Koon, “a factor that may otherwise justify a departure
will not do so when, as here, it is already accounted for in the
applicable guideline.”19
The Government, adjudging the rationale in Gonzalez-Portillo
to be sound, urges us to follow the Sixth, Seventh, and Ninth
Circuits in deeming alienage an impermissible basis for departure
when, as here, status as a deportable alien has necessarily been
taken into account by the Sentencing Commission in establishing the
offense level for the crime. We agree and hold that Garay’s status
as a deportable alien, as an element of the crime for which he was
sentenced, is not an “aggravating or mitigating circumstance of a
kind or degree not adequately taken into consideration by the
Commission”20 and therefore is not a permissible basis for downward
departure in this immigration case.
III.
Conclusion
For the reasons explained above, the district court was
correct in refusing to depart downward from the Sentencing
19
Id.; see also Martinez-Ramos, 184 F.3d at 1056 (holding that
status as a deportable alien cannot be a ground for downward
departure when deportable alien status is an element of the crime
that was necessarily taken into account by the Sentencing
Commission in crafting the offense level for the violation); United
States v. Ebolum, 72 F.3d 35, 38 (6th Cir. 1995) (holding that when
all of the crimes to which the guideline applies may be committed
only by aliens, most of whom, if not all, are deportable, courts
may assume that the Sentencing Commission took deportable alien
status into account when formulating the guideline).
20
See 18 U.S.C. § 3553(b).
7
Guidelines on the basis of Garay’s alienage. Consequently, his
sentence is
AFFIRMED.
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