Appeal from the United States District Court for the Central District of Illinois. No. 96 CR 10009 Joe B. McDade, Judge.
Appeal from the United States District Court for the Central District of Illinois. No. 96 CR 10003 Joe B. McDade, Judge. Appeal from the United States District Court for the Central District of Illinois. No. 96 CR 40016 Joe B. McDade, Judge.
Before ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.
Jose Gonzalez-Portillo, Juan Martinez-Rojas and Jesus Alberto Funes were all convicted of violating 8 U.S.C. sec. 1326, which prohibits deported aliens from returning to the United States without first gaining permission of the Attorney General. At sentencing, the defendants sought and were denied downward departures from the United States Sentencing Guidelines range based on the fact that they were deportable aliens. The defendants argued that their status as deportable aliens would lead to harsher conditions of confinement because it disqualified them from serving any portion of their sentences in minimum security institutions, half-way houses, community correction centers, or home confinement. In addition, they will face deportation upon completion of their sentences. We have consolidated these appeals to consider whether the district court erred in rejecting deportable alien status as a basis for downward departure.
In general, we review decisions regarding departures from the Guidelines range for an abuse of discretion. Koon v. United States, 116 S. Ct. 2035, 2043 (1996); United States v. Purchess, 107 F.3d 1261, 1270 (7th Cir. 1997); United States v. Otis, 107 F.3d 487, 490 (7th Cir. 1997). That standard applies to both factual determinations and, as here, "review to determine that the discretion was not guided by erroneous legal conclusions." Koon, 116 S. Ct. at 2048; see also Purchess, 107 F.3d at 1270. Although Koon adopts this unitary standard for both legal and factual determinations, it does not require deference to the district court's resolution of purely legal questions. *fn1 Koon, 116 S. Ct. at 2047, see also United States v. Gonzalez, 112 F.3d 1325, 1328 (7th Cir. 1997); United States v. Tai, 41 F.3d 1170, 1176 (7th Cir. 1994). *fn2
18 U.S.C. sec. 3553(b) authorizes a district court to depart from the applicable Guidelines range when "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." Guidelines section 5K1.2 contains the Sentencing Commission's policy statement on departures and finds them appropriate when there are factors "that have not been given adequate consideration by the Commission," or if "in light of unusual circumstances, the guideline level attached to that factor is inadequate." In its discussion of 18 U.S.C. sec. 3553(b) and U.S.S.G. sec. 5K2.0, the Supreme Court in Koon summarized the proper approach to departures in this way:
If the special factor is a forbidden factor, the sentencing court cannot use it as a basis for departure. If the special factor is an encouraged factor, the court is authorized to depart if the applicable Guideline does not already take it into account. If the special factor is a discouraged factor, or an encouraged factor already taken into account by the applicable Guideline, the court should depart only if the factor is present to an exceptional degree or in some other way makes the case different from the ordinary case where the factor is present. 116 S. Ct. at 2045 (emphasis added).
Here, defendants were sentenced under Guidelines section 2L1.2, entitled "Unlawfully Entering or Remaining in the United States." The guideline applies to infractions of several Title 8 immigration laws, all of which pertain to unlawful presence in the United States. See U.S.S.G. Appendix A. Thus, as noted by the Sixth Circuit,
[a]ll of the crimes [to which section 2L1.2 applies] may be committed only by aliens, and most, if not all, of those aliens are deportable. See 8 U.S.C. sec. 1251(a)(1)(B) (an alien is deportable if, inter alia, the alien is in the United States in violation of the immigrations laws). United States v. Ebolum, 72 F.3d 35, 38 (6th Cir. 1995).
Because deportable alien status is an inherent element of the crimes to which the guideline applies, this factor was clearly "taken into consideration by the Sentencing Commission in formulating the guideline" (18 U.S.C. sec. 3553(b)) and was accounted for in the offense levels it established. Like the Sixth Circuit, "we must assume that the Sentencing Commission took deportable alien status into account when formulating a guideline that applies almost invariably to crimes, such as 8 U.S.C. sec. 1326, that may be committed only by aliens whose conduct makes them deportable." Ebolum, 72 F.3d at 38; see also United States v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997) (Stipulation of alienage and deportability does not justify downward departure from section 2L1.2 sentencing range because Sentencing Commission would have considered deportability of aliens convicted of illegal reentry.)
Defendants cite United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994), which held that the harsher conditions of confinement faced by a deportable alien may justify a downward departure. In that case, however, the defendant had been convicted of possessing cocaine base with intent to distribute and was therefore sentenced under a guideline that did not already take his deportability into consideration. For that reason, the defendant's ineligibility for minimum security or other less onerous forms of incarceration did subject him to harsher conditions of confinement than others sentenced under the same guideline. *fn3 His special status may indeed have constituted a factor not otherwise taken into consideration in the formulation of the guideline under which he was sentenced. But that distinguishes ...