united states v. clase-espinal, 1st cir. (1997)

7/26/2019 United States v. Clase-Espinal, 1st Cir. (1997)

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USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 96-1881

UNITED STATES OF AMERICA,

Appellee,

v.

GERARDO CLASE-ESPINAL,

Defendant, Appellant.

____________________


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

___________________

____________________

Before

Selya, Cyr and Lynch,

Circuit Judges.

______________

____________________

Owen S. Walker, with whom Federal Defender Office was on b

______________ _______________________

for appellant.

Donald L. Cabell, Assistant United States Attorney, with

________________

Donald K. Stern, United States Attorney, was on brief for appel _______________


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____________________

June 19, 1997

____________________

CYR, Circuit Judge. Gerardo Clase Espinal ("Cla

CYR, Circuit Judge.


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______________

appeals the sentence imposed upon him for unlawful ree

following deportation. See 8 U.S.C. 1326(a). The ap ___

centers upon a novel government motion for downward depar

under U.S.S.G. 5K2.0, which the district court rejected.

affirm.

I

I

BACKGROUND

BACKGROUND

__________

A citizen of the Dominican Republic, Clase was f

deported from the United States on February 4, 1994, followi

felony conviction in a Texas state court for cocaine possess

On October 23, 1995, he was arrested in the United States a

and charged with unlawful reentry subsequent to an aggra


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felony conviction. See 8 U.S.C. 1326(b)(2) (1995).

___

Clase entered a guilty plea, the government agreed to recomme

downward departure under U.S.S.G. 5K2.0 in return for a st

lation of alienage and deportability following his release

prison, as well as waivers of any deportation hearing and

appeal from the deportation order.

At sentencing, after Clase represented that he woul

stipulate, the government recommended a two-level down

departure on the ground that the stipulation constituted con

not contemplated by the Sentencing Guidelines (or "Guideline

See generally U.S.S.G. 5K2.0. After rejecting the reque

___ _________

section 5K2.0 departure as beyond its power, the district c

increased the base offense level ("BOL") from eight to twe


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2

four, pursuant to U.S.S.G. 2L1.2(b)(2) (1995), on the gr

that the 1994 deportation had followed a conviction for

aggravated felony.

II

II

DISCUSSION DISCUSSION

__________


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Clase appeals the resulting forty-six month pr

sentence, challenging both the sixteen-level enhancement imp

pursuant to U.S.S.G. 2L1.2(b)(2) and the district court ru

that it lacked authority to depart under U.S.S.G. 5K2.0.

government supports the section 2L1.2(b)(2) enhancement,

joins Clase in opposition to the district court ruling denyi

section 5K2.0 departure.

A. "Aggravated Felony" Enhancement (U.S.S.G. 2L1.2(b)(2))

A. "Aggravated Felony" Enhancement (U.S.S.G. 2L1.2(b)(2))

______________________________________________________

The prior state conviction was ruled an "aggra

felony," for section 2L1.2(b)(2) purposes, because coc

possession is a felony under Texas law, see Tex. Health & Sa

___

Code Ann. 481.115(f) (1996), and accordingly violates

Federal Controlled Substances Act, 21 U.S.C. 801 et.

___


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Section 2L1.2(b)(2), comment. (n.7), defines "aggravated fel

as, inter alia, "any drug trafficking crime . . . defined i

_____ ____

U.S.C. 924(c)(2)." Section 924(c)(2) defines "drug traffic

crime" as, inter alia, "any felony punishable under the

_____ ____

trolled Substances Act."1

____________________

1Clase argues that Congress cannot have intended tha

state felony conviction for mere drug possession satisfy

"aggravated felony" requirement under 2L1.2(b)(2), since

term "drug trafficking offense" clearly excludes simple

possession. As this claim was never raised below, we review

3


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Clase acknowledges that our recent decision in Un

_

States v. Restrepo-Aguilar, 74 F.3d 361, 364-65 (1st Cir. 19

______ ________________

forecloses the present claim, but urges nonetheless that the

"felony," as used in 18 U.S.C. 924(c)(2), encompasses

offenses which would constitute felonies under federal law.

Restrepo-Aguilar directly controls, and Clase offers no ten

________________

basis for disregarding stare decisis, we decline to revisit

_____ _______

matter. See, e.g., Williams v. Ashland Eng'g Co., Inc., 45

___ ____ ________ _______________________

588, 592 (1st Cir.) (noting that First Circuit panels gener


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are bound by a prior panel decision directly on point), c

denied, 116 S. Ct. 51 (1995).

______

B. Downward Departure Under U.S.S.G. 5K2.02

B. Downward Departure Under U.S.S.G. 5K2.0

_________________________________________

On April 28, 1995, the Attorney General of the Un

States disseminated a memorandum ("the Memorandum") authori

United States Attorneys to recommend a departure below

applicable guideline sentencing range in return for an admis

of alienage and deportability, as well as waivers of any admi

____________________

for "plain error." United States v. Olivier-Diaz, 13 F.3d

_____________ ____________

(1st Cir. 1993).

Not surprisingly, error cannot be considered "plain" unl

among other things, it is "obvious." Id. Since this court___

already rejected the very contention asserted by Clase on app


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see United States v. Restrepo-Aguilar, 74 F.3d 361, 364 n.5

___ _____________ ________________

Cir. 1996), we are in no position to conclude that the dist

court ruling constituted "plain error" in these parts. Oli

___

Diaz, 13 F.3d at 5. The remaining challenges to t____

2L1.1(b)(2) ruling merit no discussion.

2Although a refusal to depart is not ordinarily appeala

see United States v. Tucker, 892 F.2d 8, 11 (1st Cir. 1989),

___ _____________ ______

rule is otherwise if, as here, the district court refused on

ground that it lacked the authority to depart. See United St

___ ________

v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).

______

4


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trative deportation hearing and any judicial appeal from

resulting deportation order. The Memorandum indicates t

downward departure based on such cooperative conduct on the

of alien criminal defendants is permissible because it

"mitigating circumstance of a kind, or . . . degree, not

quately taken into consideration by the Sentencing Commission

. .").

The United States Attorney for the District of Ma

chusetts accordingly recommended a two-level downward depar

under section 5K2.0 based on the agreement by Clase to stipu

to deportation and waive any related appeal. The district c

rejected the recommendation.

I am not satisfied that there are


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grounds within Section 5K2.0 to permit depar-

ture based upon . . . a representation [that

Clase would stipulate to deportation, etc.].

I make that determination as a matter of law.

_ ____ ____ _____________ __ _ ______ __ ___

If I have such power, then I need to be in-

structed that I do by another court . . . .

[U]pon my own independent determination, I

find the use of Section 5K2.0 to permit a

downward departure on the basis of the con-

cession of deportability and an agreement not

to contest it is not a matter that was left

___ _ ______ ____

unconsidered by the Sentencing Commission.

____________

Certainly, the specific factual circumstances

were not considered by the Sentencing Commis-

sion, but the larger issue of deportation and

the mechanisms for deportation, agreements to

ameliorate the difficulties that are adminis-

trative burdens for the government, are mat-

ters within the scope of the "heartland"

calculations of the Sentencing Commission,

generally, and in connection with deporta-

tion.

I view the Attorney General's willing- _ ____ ___ ________ _________ ________

ness, in certain circumstances, to agree to

____ __ _______ _____________ __ _____ __


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such a downward departure to be in the form

____ _ ________ _________ __ __ __ ___ ____

of a shadow sentencing guideline, unautho-

__ _ ______ __________ _________ ________

5

rized by relevant law[,] which allocates

_____ __ ________ ___

responsibilities in this area and [is] not

entitled to any particular weight. (Emphasis

added.)3

As posed by the parties and addressed by the dist

court, therefore, the question before us turns upon an abst


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legal principle: whether the stipulation and waiver relatin

alienage and deportability permit a section 5K2.0 departure b

on the conclusory departure rationale propounded in the Memo

dum.

The government and the defendant insist on appeal

the stipulation and waiver relating to alienage and deportabi

remove the case from the "heartland." See United State

___ ____________

Rivera, 994 F.2d 942, 947 (1st Cir. 1993) (Breyer, C.J.).

______

agree that the proffered departure ground is not expre

forbidden, discouraged, or encouraged by the Sentencing Gu

lines. See Koon v. United States, 116 S. Ct. 2035, 2045 (1

___ ____ _____________

(quoting Rivera, 994 F.2d at 949); see also U.S.S.G. 5H1.______ ___ ____


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5H1.12; 5K2.1 5K2.18. Yet we agree with the district c

that it is insufficient, as a matter of law, to warrant a

ward departure.

____________________

3Generally speaking, a decision not to depart is revi

only for abuse of discretion. Koon v. United States, 116 S.

____ _____________

2035, 2046-47 (1996); United States v. Cali, 87 F.3d 571, 57

_____________ ____

(1st Cir. 1996). Nevertheless, as noted in Koon, "[a] dist

____

court by definition abuses its discretion when it makes an e

of law." 116 S. Ct. at 2047. Moreover, the government agree

was "essentially taking a legal position . . . that stipul

deportations are, as a matter of law, something not fully con

plated by the Sentencing Commission in the preparation of

guidelines and subject to a downward departure through Sec

5K2.0." Therefore, the district court ruling must be reverse

it constituted legal error.

6


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The sentencing court may resort for decisional as

tance to 28 U.S.C. 991-998 (i.e., the Sentencing Commis

____

enabling act itself), 18 U.S.C. 3553, the Guidelines, inclu

the policy statements and official commentary, as well a

relevant case law. Moreover, courts must bear in mind the ex

.

Sentencing Commission ("Commission") assessment that depart

based on judicial determinations that a proffered ground

departure was not adequately considered by the Commission ar

be regarded as "highly infrequent." See U.S.S.G. Ch. 1, pt

___


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intro. comment. 4(b); see also Koon, 116 S. Ct. at 2045. Ab

___ ____ ____

a guideline or commentary directly addressing a proffered gr

for departure, therefore, sentencing courts must examine

"structure and theory of [the] relevant individual guidelines

the Guidelines taken as a whole," with a view to whether

proffered ground makes the case sufficiently atypical to re

it from the "heartland." Koon, 116 S. Ct. at 2045 (quo

____

Rivera, 994 F.2d at 949).

______

1. Whether Stipulated Deportation Constitutes

1. Whether Stipulated Deportation Constitutes __________________________________________

a Mitigating Circumstance "of a kind" Not

a Mitigating Circumstance "of a kind" Not

_________________________________________

Contemplated by the Sentencing Commission?

Contemplated by the Sentencing Commission?

_________________________________________

An aggravating or mitigating circumstance falls wi


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the "heartland" unless it is "of a kind" not adequately con

ered by the Commission or "present to a degree" neither rea

envisioned nor often seen in connection with such an offende

offense of conviction. See 18 U.S.C. 3553(b); U.S.S.

___

5K2.0; United States v. Sklar, 920 F.2d 107, 115 (1st Cir. 19

_____________ _____

We are loath to presume, as a general matter, that the Commis

7


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either overlooked or inadequately considered the statutory

regulatory structures upon which an informed sentencing treat

of immigration offenses significantly depended. See, e

___

U.S.S.G. 2L1.2 comment. (citing to 8 U.S.C. 1326);

comment. (n.4) (describing 16-level enhancement for alien pr

ously deported after conviction for aggravated felony). Rat

given its mandate, see 28 U.S.C. 994, as well as its inst

___

tional expertise and experience, see id. 995, we think i

___ ___

quite clear that the Commission would have considered tha

alien defendant, particularly one convicted of unlawful ree

________ __

subsequent to deportation for an aggravated felony, al

certainly would be deported again. See 8 U.S.C. 1251(a)(1


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___

(alien who has entered without inspection), 1251(a)(2)(A)(

(alien convicted of aggravated felony after admission) (1

(amended sections presently codified at 8 U.S.C. 1227 (199

Furthermore, we believe it would be farfetche

suppose that the Commission overlooked the central reality

in all likelihood deportation would occur by normal operation

law as a matter of course irrespective of the a

____________ __ ___

defendant's consent following a conviction for illegal ree

___________ _______

subsequent to deportation for an aggravated felony. Cf. Un

___ _

States v. Restrepo, 999 F.2d 640, 647 (2d Cir.) (even absent

______ ________

indication in the Guidelines that Congress or the Commis


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"considered the interplay between deportability and senten

provisions," deportability is not a ground for departure beca

8

among other reasons, "it is difficult to believe that the Co

sion was not conscious that a large number of defendants

tenced in the federal courts are aliens"), cert. denied, 510

_____ ______

954 (1993); United States v. Ceja-Hernandez, 895 F.2d 544,


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______________ ______________

(9th Cir. 1990) (per curiam) ("When setting the offense level

___ ______

entry after deportation, the Sentencing Commission would cert

ly have been aware of the practice of promptly deporting al

after they serve such sentences.").

Similarly, the facilitative nature of stipul

deportations does not strike us as a circumstance "of a

left unconsidered by the Commission. Several guidelines t

stipulated deportations in the same manner as formal deportat

for purposes of subsequent prosecution. For example, sect

2L1.1(b)(3) and 2L2.2(b)(1) identify a prior deportation, whe

voluntary or involuntary, as a "specific offense" characteris

See also U.S.S.G. App. C, amend. 196 (1995) (likewise discus ___ ____


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voluntary as well as involuntary deportations). Although t

provisions simply indicate that prior deportations, voluntar

well as involuntary, are aggravating "specific offense" cha

teristics, their presence in the Guidelines conspicuously de

strates Commission awareness not only that numerous ill

aliens become enmeshed in the criminal justice system, but

many are expelled from the United States without ever under

formal deportation proceedings.4 Moreover, given the l

____________________

4See Immigration and Naturalization Serv. v. Lopez-Men

___ _____________________________________ _________

468 U.S. 1032, 1044 (1984) (noting that approximately 97.5

all illegal aliens are deported from the United States volunt

9


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numbers of illegal aliens expelled from the United States

year without undergoing formal deportation proceedings,5

consider it exceedingly improbable that the Commission ei

overlooked stipulated expulsions altogether or regarded t

facilitative value to be "of a kind" warranting a down

departure. These analogous data indicate that an alien cri

defendant with no plausible basis for contesting deportatio

particularly one convicted of illegal reentry subsequent

deportation for an aggravated felony does not meet


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atypicality requirement for a section 5K2.0 departure simpl

relying upon whatever administrative convenience presumably

result from a stipulated deportation. Cf. United States___ ____________

____________________

ly with no formal adjudication of status by the Immigration

Naturalization Service ["I.N.S."]). Indeed, the data consist

ly indicate that only about 3% of all apprehended aliens who

expelled ever undergo a deportation hearing. See Immigration

___

Naturalization Service, 1993 Statistical Yearbook 158 tb

___________________________

(1994); Immigration and Naturalization Service, 1987 Statist

___________

Yearbook 124 tbl.70 (1988) (tables reflecting that, in 1993,

________

about 3% of all apprehended aliens required to leave the Un

States were deported after a hearing. The data are similar

other years: 3.3% in 1992, 2.6% in 1991, and 2% in 1987.).

vast majority of illegal aliens are subjected to a nonadversa

procedure known as "voluntary departure with safeguards" (a

sion of illegal status, agreement to leave, and retention

custody pending a voluntary departure observed by an I.

agent) or submit to a "required departure under docket cont

(after I.N.S. officer starts deportation file, alien a

illegal status and accepts voluntary departure). See i

___ _


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xxxix. I.N.S. does not publish data regarding stipulated de

_

tations, as distinguished from stipulated departures requirin

_______

formal administrative adjudication.

5In 1991, for example, 28,759 aliens were deported

1,060,745 were required to depart (totaling 1,089,504 expell

1993 Statistical Yearbook 158 tbl. 59; 1992: 38,202 deporte

_________________________

1,105,160 required to depart (totaling 1,143,362 expelled),

1993: 36,686 deported and 1,242,169 required to depart (tota

1,278,855 expelled), id.

___

10


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Barber, 93 F.3d 1200, 1205 (4th Cir. 1996) (vacating up

______

departure for using firearm to effect second degree mur

because "Commission could not have failed to take into accou

. . that that offense is commonly committed by use of a gun .

. No scenario could be more typical, more within the heartl

of second-degree murder than death by one weapon or anot

especially by firearm.").6

We therefore conclude that the Sentencing Commis

was fully cognizant that virtually all alien criminal defenda

convicted under 8 U.S.C. 1326(a) and sentenced pursuant

U.S.S.G. 2L1.2, would be subjected to deportation and that

undoubtedly would stipulate to deportation. Accordingly,

hold, at least in the absence of a colorable, nonfrivo


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defense to deportation, that the proffered ground for depar

under U.S.S.G. 5K2.0 does not constitute a mitigating cir

stance of a kind not adequately considered by the Commission.

__ _ ____

2. Whether the Stipulated Deportation

2. Whether the Stipulated Deportation

__________________________________

Constituted Mitigation "to a degree" Constituted Mitigation "to a degree"

___________________________________

Not Contemplated by the Commission?

Not Contemplated by the Commission?

__________________________________

____________________

6An analogous guideline provision likewise bolsters

assessment. Section 3E1.1(a) permits a two-level down

adjustment for clearly demonstrating acceptance of responsibi

for the offense of conviction. U.S.S.G. 3E1.1(a). Never

less, "a defendant who . . . frivolously contests [] rele

___________ ________

conduct that the court determines to be true has acted

manner inconsistent with acceptance of responsibility." Id.

___

ment. (n.1(a)) (emphasis added). By the same token, we thi

downward departure for simply stipulating to deportation fol

ing a conviction for illegal reentry subsequent to an aggra


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felony, unaccompanied by any suggestion that the alien defen

possessed a nonfrivolous defense to deportation, would repre

___

a disproportionate reward for whatever modest administra

benefit might obtain.

11

A mitigating circumstance is present to a degree

contemplated by the Commission only if it is portentous enou

make the case meaningfully atypical. United States v. Mari

____________ _____________ ___

983 F.2d 1150, 1154 (1st Cir. 1993) ( 5K2.0 serves as a "sa


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valve" for "important, atypical" factors which remove the

from the "heartland"); Sklar, 920 F.2d at 115 n.7 (proff

_____

circumstance "must have weight . . . it must be sufficie

portentous to move the case out of the heartland for the off

of conviction."); United States v. Williams, 891 F.2d 962,

_____________ ________

(1st Cir. 1989) ("departures must be based upon meanin

_____

atypicality; . . . judges can always flyspeck individual case

___________

find some sort of idiosyncracy. . . . If the guidelines ar

provide a coherent system of criminal sentencing, the t

court's right to depart, up or down, must be restricted to t

few instances where some substantial atypicality can be de

___________ ___________ _

strated.") (emphasis added).

_______


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Absent some mitigating circumstance not suggested

no substantial atypicality is demonstrated where an alien de

dant simply stipulates to deportation and no nonfrivolous def

to deportation is discernible. Compare United States v.

_______ _____________

920 F.2d 1100, 1107 (2d Cir. 1990) (discussing potential down

departure for saving government informant's life), cert. den

_____ __

499 U.S. 969 (1991). As the district court noted,

government's conclusory departure recommendation, simplici

_______

does not purport to demonstrate that the facilitative con

relied upon even constituted substantial assistance warran

12


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sentencing leniency. Cf. United States v. Cardenas, 896

___ _____________ ________

317, 320 (8th Cir. 1990) (holding that government's ackn

edgement that defendant accepted personal responsibility does

control sentencing determination); United States v. Nunley,

______________ ______

F.2d 182, 187 & n.6 (8th Cir. 1989) (same); United State

____________

Forbes, 888 F.2d 752, 754 (11th Cir. 1989) (sentencing court

______

bound by government stipulation that defendant was minor part


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pant). Consequently, there is no indication that any adminis

tive convenience to the government constituted a mitiga

circumstance "to a degree" not adequately considered by

Commission. See United States v. Romolo, 937 F.2d 20, 24-25

___ _____________ ______

Cir. 1991); Sklar, 920 F.2d at 115. More to the present po

_____

the stipulation in this case must be considered de minimis

__ _______

the standpoint of its assistance in alleviating any adminis

tive burden upon the government, since Clase has no discern

defense to deportation.

Thus, the parties essentially are left with t

implicit contention that any stipulated deportation constit

___

an extraordinary mitigating circumstance, for no other re

than that it bears the government's endorsement and dispe


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with an administrative hearing. However, were downward de

tures permitted simply on the conclusory representations in

Memorandum, without regard to whether the alien defendant ha

nonfrivolous defense to deportation, individualized guide

sentencing indeed could be undermined by what the district c

aptly termed a "shadow guideline" that would erode the prescr

13


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BOL in any alien-criminal defendant's case to which the go

ment chose to apply the Memorandum, simpliciter.7

___________

The district court prudently recognized that senten

courts may not defer to unsubstantiated prosecutorial recomme

tions as adequate grounds for section 5K2.0 departures. We

as well that even the indispensable government motion fo

"substantial assistance" departure under U.S.S.G. 5K1.1 si

presents the matter for judicial consideration. See Mariano,

___ _______

F.2d at 1155 ("[T]he decision whether to depart after the go

ment has made such a [ 5K1.1 substantial assistance] motion

. falls squarely within the district court's domain. The

trict court is not obligated to depart downward simply becau

grateful prosecutor prefers a lighter sentence."). The dist


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court correctly determined that it lacked authority to depar

the ground that the stipulated deportation constituted mitiga

to a degree neither readily envisioned nor often seen in con

tion with such an offender or offense of conviction.

Mariano, 983 F.2d at 1154; Sklar, 920 F.2d at 115 n.7.

_______ _____

III

III

CONCLUSION

CONCLUSION

__________

With no record indication that this case is mean

fully atypical in any material respect, see id. at 115,___ ___

____________________

7The Memorandum itself simply announces that the "Admi

tration is committed to effecting the deportation of cri

aliens from the United States as expeditiously as possible.


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[i.e., United States Attorneys] can make a major contributio

____

this effort by effectively using available prosecutive tools

dealing with alien defendants." See also pp. 4-5 supra.

___ ____ _____

14

section 5K2.0 departure recommendation lacked a cognizable l

basis. Accordingly, it is unnecessary to determine whet

stipulation of alienage and deportability, accompanied by

attendant waivers, may ever serve as an adequate groun


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downward departure under section 5K2.0. See Koon, 116 S. Ct

___ ____

2051 ("with few exceptions, departure factors should not be r

out on a categorical basis").

The district court judgment is affirmed.

_______________________________________


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united states v. clase-espinal, 1st cir. (1997)

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