United States v. Maira Bernice Guzman

236 F.3d 830, 2001 U.S. App. LEXIS 43, 2001 WL 6749
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 3, 2001
Docket99-2169
StatusPublished
Cited by50 cases

This text of 236 F.3d 830 (United States v. Maira Bernice Guzman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Maira Bernice Guzman, 236 F.3d 830, 2001 U.S. App. LEXIS 43, 2001 WL 6749 (7th Cir. 2001).

Opinions

POSNER, Circuit Judge.

The government appeals from a 25-level downward departure granted the defendant by the sentencing judge because of the defendant’s “cultural heritage,” which is Mexican (she is a citizen of Mexico, not of the United States) and because her conviction of a serious drug offense makes her deportable. She had pleaded guilty to participating in a conspiracy to distribute methamphetamine. Had the judge not granted the downward departure of which the government complains, the defendant’s sentencing range would have been 57 to 71 months in prison. After making the departure, the judge sentenced her to time served (three days) plus six months of home detention plus an additional two and a half years of supervised release.

The other participants in the conspiracy were two men, one of whom was the defendant’s boyfriend, also a Mexican. Her role in the conspiracy was to help him. The presentence report recommended a downward departure for her (though it did not recommend a specific number of offense levels to depart downward by) because Mexican cultural norms dictated submis[832]*832sion to her boyfriend’s will. Moreover, she had taken up with him in defiance of her family’s wishes and it would have been humiliating for her to break with him and return to her family — especially since she was pregnant with his child yet they were not married.

The government argues that a defendant’s cultural heritage can never be a basis for a downward departure. It points to section 5H1.10 of the Sentencing Guidelines, which provides that “race, sex, national origin, creed, religion, and socioeconomic status” (income, education, and other indicia of status) “are not relevant in the determination of a sentence.” The Sentencing Commission adopted this guideline under Congress’s direction that the guidelines be “entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). There is no illuminating legislative history, and no case in this court on whether “cultural heritage” should be subsumed under any (perhaps a combination) of the factors expressly excluded by section 5H1.10 from the sentencing judge’s consideration. Two circuits have held that it should be. United States v. Contreras, 180 F.3d 1204, 1212 n. 4 (10th Cir.1999); United States v. Sprei, 145 F.3d 528, 536 (2d Cir.1998). Several other circuits, while expressing queasiness at allowing sentencing judges to consider a characteristic that overlaps so closely with national origin, have left open the question whether it may ever be considered but have declined to hold that it may never be. See United States v. Tomono, 143 F.3d 1401, 1404 and n. 2 (11th Cir.1998); United States v. Yu, 954 F.2d 951, 954 (3d Cir.1992); United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir.1989). Some Eighth Circuit cases, United States v. Decora, 177 F.3d 676, 679 (8th Cir.1999); United States v. One Star, 9 F.3d 60, 61 (8th Cir.1993), and United States v. Big Crow, 898 F.2d 1326, 1331-32 (8th Cir.1990), allow a cultural factor, specifically, having grown up on an Indian reservation, to be used in sentencing, but they do so without consideration of its compatibility with section 5H1.10, the government apparently not having argued its incompatibility in those cases.

There is considerable force to the government’s argument, though precisely how much we need not decide today. Although culture or, as we think it more precise to say, ethnicity is not specified in the guideline or in the statutory provision that compelled it, this may well have been because the drafters thought that the exclusions that are listed encompass ethnicity. To put it differently, the exclusions might unravel if ethnicity were an admissible consideration in sentencing. Race, for example, means rather little apart from the cultural characteristics that often are correlated with it. National origin is also often correlated with ethnicity and so for that matter is religion, see United States v. Sprei supra, 145 F.3d at 536, and, as we’ll see, gender; and likewise socioeconomic status, which to a great extent is a function of one’s upbringing and therefore shaped by the culture — the ethnicity — of one’s parents. A judge who wanted to give a break to a black defendant, or a woman, or a Muslim, or a Colombian would have no difficulty pointing to ethnic characteristics that distinguished the defendant from a white male whose ancestors had come to America on the Mayflower. Congress and the Sentencing Commission did not want judges to have such leeway, which would inject enormous subjectivity and variance into a sentencing scheme designed to achieve reasonable objectivity and uniformity.

There is also tension well illustrated by this case between recognizing cultural heritage as a factor warranting a downward departure and the guidelines’ provision for a downward departure for a defendant whose role in the crime was minor, U.S.S.G. § 5H.7, and their disapproval of a downward departure based on family relationship. § 5H1.6.- Guzman received a minor-participant departure, which she is seeking to multiply by the cultural-heritage route. And she argues for a cultural-[833]*833heritage departure in part on the basis of her relationship with her family, which she argues prevented her from leaving her criminal boyfriend; in so arguing she is seeking to get around section 5H1.6.

This is not to deny the possibility of a causal relation between ethnicity and a recognized basis for a downward departure. It just might be the case that because of some ethnic factor a defendant’s participation was smaller than it would otherwise have been — for example, by reason of being of a different ethnic background from that of his coconspirators the defendant might not have been entrusted with more than a very minor role in the conspiracy. But the judge’s focus properly would be on the extent of the defendant’s participation, not on the ultimate (which might be ethnic) causes of that extent. So ethnicity can play a causal role in relation to other departure factors and it can also be another name for characteristics that the guidelines forbid consideration of. In neither class of cases is it properly used as an independent ground for a departure.

We are concerned about the danger that recognizing cultural heritage as an independent ground for departure presents both of perpetuating stereotypes and (though not of great moment in a drug case) of stripping whole classes of potential crime victim of the full protection of the law. One can imagine, in a case in which the defendant had murdered a homosexual, the defendant’s lawyer pleading for a downward departure on the ground that the defendant had been culturally sensitized to believe that a sexual overture from another man was a lethal challenge to his masculinity.

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Cite This Page — Counsel Stack

Bluebook (online)
236 F.3d 830, 2001 U.S. App. LEXIS 43, 2001 WL 6749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-maira-bernice-guzman-ca7-2001.