Opinion
No. 04-40116-01-SAC.
December 15, 2004
SENTENCING FINDINGS
The defendant on September 15, 2004, entered a plea of guilty to the single count information that charged him with illegal re-entry by a previously deported alien convicted of an aggravated felony in violation of 8 U.S.C. § 1326. Pursuant to the plea agreement, the government agreed to recommend the maximum adjustment for acceptance of responsibility and a sentence at the low end of the guideline range and to not file a motion for upward departure if the defendant did not request a downward departure. The defendant remains in custody pending sentencing.
For the offense in question, the base offense level is eight under U.S.S.G. § 2L1.2(a). The Presentence Report ("PSR") recommends a twelve-level enhancement pursuant to § 2L1.2(b)(1)(B) for the defendant's prior felony drug trafficking conviction. The PSR calculates a total offense level of seventeen after a three-level adjustment for acceptance of responsibility. The defendant's criminal history points total nine resulting in a criminal history category of four. The defendant's sentencing guideline range is thirty-seven to forty-six months.
The defendant argues two grounds, individually and in combination, in support of his motion for a downward departure: that the defendant has extraordinary family and cultural ties to the United States which were the reasons for his reentry and that the nine criminal history points overstate the seriousness of his criminal history. The defendant bears the burden of proving he is entitled to a downward departure. United States v. Constantine, 263 F.3d 1122, 1128-29 (10th Cir. 2001).
Departures based on cultural assimilation are akin to family and community ties, all of which are discouraged factors under the guidelines and must be extraordinary to justify a departure. United States v. Gonzalez-Lopez, 41 Fed. Appx. 286, 287, 2002 WL 997484, *1 (10th Cir. 2002) (citing in part United States v. Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998)). The court has read and considered the defendant's proffer in his motion regarding his family and cultural ties to the United States. In the exercise of its discretion, the court is not persuaded that the defendant's circumstances justify a downward departure. Considering the defendant's prior drug trafficking conviction, his use of numerous aliases, and his most recent arrest at a residence where a substantial amount of drugs and guns were found and whose owner has since been charged in federal court on drug trafficking charges, the court does not believe that the defendant reentered the United States only because he wanted to find and support his family. These same circumstances also undermine any serious claim that the defendant was culturally assimilated into the mores, ethics and laws of the United States.
The defendant also seeks a downward departure arguing that a criminal history category of four over-represents the seriousness of the defendant's criminal history. By the terms of U.S.S.G. § 4A1.3(b)(1), a departure on this ground must be based on "reliable information" and is justified when the defendant's criminal history category substantially over-represents (1) "the seriousness of the defendant's criminal history" or (2) "the likelihood that the defendant will commit other crimes." In short, "[t]he purpose of U.S.S.G. § 4A1.3 is to allow a district court to deviate from the otherwise applicable guideline range where a defendant's criminal history, likelihood of recidivism, or both, differ significantly from the typical offender for whom the Sentencing Commission formulated the applicable criminal history category." United States v. Caldwell, 219 F.3d 1186, 1195 (10th Cir. 2000) (citation omitted). In applying this departure, the courts look at the nature, circumstances and age of the prior conviction, the defendant's age when he committed them, the length of the prior sentences, what was happening in the defendant's life when the offenses were committed, and the closeness in time of the prior offenses. See, e.g., United States v. Hammond, 240 F. Supp. 2d 872, 877 (E.D. Wis. 2003).
The PSR calculates nine criminal history points. One point is given for a 2001 felony drug conviction in state court after which the defendant was deported in July of 2001. Two points are given for a 2002 fictitious identification conviction in state court. The remaining six points result from the defendant's 2002 conviction for illegal re-entry and from his commission of the instant offense while he was on supervised release for illegal re-entry conviction and within two years following his release from federal custody for the same conviction. These six criminal history points reflect the seriousness of the defendant's prior illegal reentry offense and the recidivism reflected in the defendant's commission of the same offense less than a year after his release from custody and while he was on supervised release. The court is not persuaded that the defendant's criminal history and likelihood of recidivism differ significantly from the typical offender in criminal history category four.
Nor is this one of those extremely rare cases where the different factors uniquely combine to warrant a departure. For these reasons, the court denies the defendant's request for a downward departure, but it does find that these circumstances warrant a sentence at the low end of the guideline range.
IT IS THEREFORE ORDERED that the defendant's motion for downward departure (Dk. 11) is denied.