United States v. Valdez-Trujillo

11 F. App'x 551

Opinions

OPINION

COLE, Circuit Judge.

Defendant-Appellant German Valdez-Trujillo appeals the district court’s denial of his request for a downward departure following his plea of guilty to the charge of illegally reentering the United States in violation of 8 U.S.C. § 1326(b)(2). Under the terms of the Rule 11 plea agreement, Defendant reserved the right to request a downward departure from his sentencing range on the bases of family ties and responsibilities, cultural assimilation, and lesser harms. At sentencing, Defendant argued that he was entitled to a downward departure as authorized under United States Sentencing Guideline §§ 5H1.6, 5K2.0, and 5K2.11.¹ Defendant’s Presentence Investigation Report (“PIR”) calculated his offense level at 21 with a criminal history category III, which put him in a sentencing range of 46 to 57 months. The district court adopted the PIR, sentenced Defendant to 46 months in prison, and denied Defendant’s motion for a downward departure. For the reasons that follow, we DISMISS the appeal.

BACKGROUND

In 1976, Defendant moved to the United States from Mexico when he was twelve years old. In 1989, Defendant was arrested and charged with a state drug offense; while out on bond, he was arrested and charged with a second drug offense. He pled guilty to both offenses and was sentenced to fourteen years in prison. In October 1995, Defendant married Marciela Del Rio, and in May 1996, shortly after his release from jail, he was deported for being an alien convicted of an aggravated felony. He illegally reentered the country less than one month later but was not arrested until 1998. He was not prosecuted for this illegal reentry but promptly was deported. He again illegally reentered the country within a week. On neither of these occasions did Defendant apply for or receive permission to reenter the United States.

In July 1999, while Defendant was working as a truck driver in Michigan, a police officer stopped Defendant for not having operational tail or brake lights on his truck. During this routine traffic stop, the officer conducted a records check and discovered that the Immigration and Naturalization Service (“INS”) had issued a warrant indicating that Defendant was a deportable alien with an aggravated felony conviction. The officer arrested Defendant and turned him over to the INS, which, in turn, charged Defendant with reentry of a removed alien in violation of 8 U.S.C. § 1326(b)(2).

The issue before us is whether we may review the district court’s denial of Defendant’s motion for a downward departure, and if so, whether the district court abused its discretion in denying the motion.

DISCUSSION

I. Standard of Review

We review a district court’s decision to grant a downward departure for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 91, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Weaver, 126 F.3d 789, 792 (6th Cir.1997). “[A] district court’s decision to depart from the Guidelines ... will in most cases be due substantial deference, for it embodies the traditional exercise of discretion by a sentencing court.” United States v. Crouse, 145 F.3d 786, 788 (6th Cir.1998) (quoting Koon, 518 U.S. at 98) (omission in original). A district court’s refusal to grant a downward departure generally is not renewable on appeal. See United States v. Landers, 39 F.3d 643, 649 (6th Cir.1994) (“Ordinarily, a sentence conforming to the range mandated by the guidelines cannot be appealed simply because the trial judge refused to award a downward departure.”). Only under circumstances where the district court incorrectly believed that it lacked discretion to depart downward may we review a district court’s denial of a downward departure. See United States v. Coleman, 188 F.3d 354, 357 (6th Cir.1999) (en banc) (“An appellate court may only review a denial of a motion for a downward departure if the district court judge incorrectly believed that she lacked any authority to consider defendant’s mitigating circumstances as well as the discretion to deviate from the guidelines.”) (internal quotation marks and alteration omitted). Finally, in order to determine whether a district court’s refusal to depart downward was based upon a legal conclusion that it lacked the requisite authority, or whether it simply was an exercise of discretion, we must review the sentencing transcript. See United States v. Ebolum, 72 F.3d 35, 37 (6th Cir.1995).

II. Sentencing Transcript

We recognize that a sentencing judge has no duty “to state affirmatively that he knows he possesses the power to make a downward departure, but declines to do so.” United States v. Byrd, 53 F.3d 144, 145 (6th Cir.1995). As we recently emphasized:

[A]n appellate court should be reluctant to treat as ambiguous a ruling which does not affirmatively state that the judge knew he could depart downward but failed to do so. We should therefore assume that a district court is exercising its proper discretion when it concludes that a downward departure is unwarranted.

United States v. Owusu, 199 F.3d 329, 349 (6th Cir.2000) (internal quotation marks and citations omitted).

Although Defendant argues that he was entitled to a downward departure on all of the grounds asserted-family ties and responsibilities, cultural assimilation, and lesser harms-during oral argument, he focused on the district court’s failure to grant a downward departure based on cultural assimilation grounds. As this Court has yet to recognize “cultural assimilation” as valid grounds for departure,² Defendant relies on the Ninth Circuit’s decision in United States v. Lipman, 133 F.3d 726 (9th Cir.1998), which held that a district court has the authority to consider cultural assimilation as a basis for departing downward. See also United States v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir.1998) (same). Defendant argues that not only was he entitled to a downward departure on cultural assimilation grounds, but that the ease is properly before us on review because the sentencing transcript is devoid of any mention of cultural assimilation. Thus, Defendant argues, the district court obviously believed it lacked the authority to depart downward on those grounds.

Defendant’s argument is without merit. To the contrary, it is clear from the sentencing transcript that the district court was aware that Defendant was asserting cultural assimilation, as well as family ties and responsibilities and lesser harms, as grounds for a downward departure. During the sentencing hearing, defense counsel informed the district court:

I’m asking the Court to consider a downward departure for the reasons I’ve stated in the Sentencing Memorandum. Understanding that the Court’s read the memo. I’ll be brief. I think a departure would be appropriate, your Honor, under any of the grounds, either individually or collectively. I’ve stated in the sentencing memorandum.

Upon further examination of the sentencing transcript, we find that the district court knew that it had the authority to depart downward on the grounds asserted and simply chose not to based on the circumstances of Defendant’s particular case. Indeed, the district court explained that it found no reason to grant a departure on “any of the bases that the defense and defendant has [sic] relied upon.” The following excerpt from the sentencing transcript illustrates that the district court recognized its authority to depart from Defendant’s sentence:

Even if I were-which I’m not going to do, even if I were to decide not to incarcerate him at all but, rather, order INS to make a determination as to his deportation status, that he would be deported rather than incarcerated, as I said, I’m not considering that, I don’t understand how that serves the policy objectives you’re relying on upon for a downward departure.

(emphasis added). The language used by the district court reveals that the court understood its power to reduce Defendant’s sentence but chose not to do so because the purpose and policy objectives of the guidelines simply would not be served in Defendant’s case.

Because there is nothing in the record to indicate that the district court denied Defendant’s motion for a downward departure on the grounds that it believed it lacked the authority to grant such a departure, we must assume that the district court recognized its authority and exercised its proper discretion when it concluded that a downward departure was not warranted. See Owusu, 199 F.3d at 349. Therefore, we need not reach the question of whether Defendant was entitled to a downward departure, particularly on cultural assimilation grounds, or whether a district court in our circuit even has the authority to depart on such grounds, because this case is not properly before us on review.

CONCLUSION

Accordingly, we DISMISS the appeal.

HOLSCHUH, J., dissenting.

Footnotes

1

. Section 5H1.6 states:

Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. U.S.S.G. § 5H1.6 (1998). Section 5K2.0 states:

[T]he sentencing court may impose a sentence outside the range established by the applicable guidelines, 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." Circumstances that may warrant departure from the guideline range pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The decision as to whether and to what extent departure is warranted rests with the sentencing court on a case-specific basis.

U.S.S.G. § 5K2.0 (1998). Section 5K2.11 states:

Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government’s policies were misdirected. In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue. For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.

U.S.S.G. § 5K2.11 (1998).

2

. In an unpublished decision from this Court, we affirmed the denial of a defendant’s request for a downward departure based on cultural assimilation. See United States v. Yee, 5 Fed.Appx. 433 (6th Cir.2001) (unpublished). Without comment as to whether the district court had the authority to depart downward on cultural assimilation grounds, we declined to review the denial because there was no evidence that the district court believed it was without authority to depart downward. See id. at 434.