United States v. Paniagua-Ortiz

91 F. App'x 575

Opinions

MEMORANDUM

Footnotes

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Leticia Paniagua-Ortiz (“Paniagua-Ortiz”) was convicted of illegal reentry and sentenced to twenty-four months imprisonment. The United States appeals the district court’s downward departure in sentencing Paniagua-Ortiz.

We apply de novo review to the district court’s downward departure determinations. See United States v. Phillips, 356 F.3d 1086, 1100 (9th Cir.2004) (holding that the de novo review must be applied “in any case decided by this court subsequent to the PROTECT Act’s effective date of April 30, 2003.”).

The district court did not err in granting Paniagua-Ortiz a downward departure for cultural assimilation, because she had resided in the United States for twenty-seven years; she attended elementary, junior high, and high school in California; she reads and writes English; her father and several siblings are legal residents of the United States; she has two children who are legal residents of the United States; and there are no discrete indications that Paniagua-Ortiz’s illegal reentry was based on purely economic incentives. See United States v. Lipman, 133 F.3d 726, 731 (9th Cir.1998) (holding that “a sentencing court may depart on the basis of cultural assimilation if it finds that the defendant’s circumstances remove his case from the heartland of cases governed by the relevant individual guidelines and the Guidelines as a whole.”).

The district court erred in granting Paniagua-Ortiz, who is a dwarf, a three-level downward departure based upon a combination of factors: (1) the discrimination in Mexico against dwarves (incorporating a “lesser harms” application); (2) Paniagua-Ortiz’s separation from her infant child; and (3) jury sympathy. Paniagua-Ortiz did not satisfy her burden of proving the factual basis for the departure based on her stature. See United States v. Khang, 36 F.3d 77, 79 (9th Cir.1994). In addition, her separation from her child is not an exceptional case that is outside the heartland of cases. See Koon v. United States, 518 U.S. 81, 95, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (holding that a defendant’s family ties and responsibilities are not ordinarily relevant in determining “whether a sentence should be outside the applicable guideline range[,]” and thus, these factors “should be relied upon only ‘in exceptional cases.’ ”). Finally, the jury’s request for leniency was not a sufficient basis for the district court to depart downward. See United States v. Rose, 20 F.3d 367, 374 n. 6 (9th Cir.1994).

AFFIRMED in part, and REVERSED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.