The opinion of the court was delivered by: BLANCHE MANNING, District Judge
Defendant Tejeda pled guilty to one count of illegal re-entry
into the United States, after having been deported because of a
conviction of an aggravated felony, in violation of
8 U.S.C. § 1326. Under United States Sentencing Guideline ("Guideline")
section 2L1.2, Probation calculated Tejeda's total offense level
at a 21, with a criminal history category of II, which results in
a range of incarceration between 41 to 51 months. The present
matter comes before this Court on Tejeda's Motion for Downward
Departure based on his "exceptional cultural assimilation" to the
United States, pursuant to Guideline section 5K2.0 and
18 U.S.C. § 3553. For the reasons that follow, this Court GRANTS the
Generally, the sentencing court must impose a sentence falling
within the applicable range set forth in the Guidelines. See
Koon v. United States, 518 U.S. 81, 85 (1996). The court may,
however, depart from the Guidelines if it "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."
18 U.S.C. § 3553(b). See also U.S.S.G. § 5K2.0; Koon, 518 U.S. at 92. Therefore, "[i]n the absence of a characteristic or circumstance
that distinguishes a case as sufficiently a typical to warrant a
sentence different from that called for under the guidelines, a
sentence outside the guideline range is not authorized." U.S.S.G.
§ 5K2.0, Comment.
Examining departures from the Guidelines, the Supreme Court in
Koon explained that the Sentencing Commission intended "the
sentencing courts to treat each guideline as carving out a
`heartland', a set of typical cases embodying the conduct that
each guideline describes." Koon, 518 U.S. at 93 (quoting
U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)). The Sentencing
Commission, however, "did not adequately take into account cases
that are, for one reason or another, unusual." Id. Thus,
"[w]hen a court finds an atypical case, one to which a particular
guideline linguistically applies but where conduct significantly
differs from the norm, the court may consider whether a departure
is warranted." U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b).
Therefore, before a sentencing court is permitted to depart from
the Guidelines, the court must find that the case is "unusual"
enough for it to fall outside the "heartland" of cases covered in
the applicable guideline. See Koon, 518 U.S. at 93.
The Court in Koon set forth the following factors that
sentencing courts should use in determining whether to depart
from the applicable Guideline range is appropriate:
1) What features of this case, potentially, take it
outside the Guidelines' "heartland" and make of it a
special, or unusual, case?
2) Has the Commission forbidden departures based on
3) If not, has the Commission encouraged departures
based on those features?
4) If not, has the Commission discouraged departures
based on those features?
Koon, 518 U.S. at 95. The Court went on to explain the
mechanics of applying this framework:
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. If a factor is
unmentioned in the Guidelines, the court must, after
considering the structure and theory of both relevant
individual guidelines and the Guidelines taken as a
whole, decide whether it is sufficient to take the
case out of the Guidelines heartland The court must
bear in mind the Commission's expectation that
departures based on grounds not mentioned in the
Guidelines will be highly infrequent.
Id. at 95-96 (emphasis added).
Here, the "cultural assimilation" factor is not mentioned in
the Guidelines. Therefore, the Court will examine the relevant
case law and the Guidelines to determine whether it is a factor
which is sufficient to take this case out of the heartland
While the Seventh Circuit has not specifically addressed
whether the sentencing court may "consider `cultural
assimilation'" when sentencing a defendant for illegally
reentering the United States, in violation of 18 U.S.C. § 1326,
United States v. Soto-Montero, 55 Fed. Appx. 778, 779, 2003 WL
261958, at *2 (7th Cir. Feb. 5, 2003), the three circuits to
address the issue have held that "cultural assimilation" could be
taken into account when examining the defendant's culpability
e.g., whether the defendant illegally returned only because of
his strong ties to the United States and not for economic or
criminal reasons. E.g., United States v.
Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United
States v. Sanchez-Valencia, 148 F.3d 1273, 1274 (11th Cir.
1998); United States v. Lipman, 133 F.3d 726, 730-31 (9th Cir.
1998). Following these decisions, a number of district courts,
including one in the Seventh Circuit, have granted downward
departures for illegal reentry based on a lesser degree of
culpability due to cultural assimilation. E.g., United States
v. Martinez-Alvarez, 256 F. Supp.2d 917, 918-20 (E.D. Wis.
2003); United States v. Reyes-Campos, 293 F. Supp.2d 1252,
1255-57 (M.D. Al. 2003). In United States v. Bautista, 258 F.3d 602, 605 n. 2 (7th
Cir. 2001), the court noted that a departure based on the
consequences of deportation because of "cultural assimilation"
was prohibited. As an aside, however, the court appeared to leave
open whether a defendant could argue that "cultural assimilation"
could be taken into account when examining the defendant's
culpability e.g., whether the defendant illegally returned
only because of his strong ties to the United States. See
Soto-Montero, 55 Fed. Appx. 778, 779, 2003 WL 261958, at *2
(declining to determine whether Bautista "opened the door" to
argue "cultural assimilation" with respect to culpability).
Affirming the district court's denial of departure, the court
in Soto-Montero held, assuming that departure was permitted,
that the court properly exercised its discretion. 55 Fed. Appx.
778, 780, 2003 WL 261958, at *3. The district court first
examined the "cultural assimilation" factors which included the
fact that the defendant "lived in the United States for most of
his life" with his family, could not speak his native language
(Spanish), had no real connection to Mexico. Id. The court
weighed these factors against the defendant's "frequent run-ins
with the law, which undermined his stated sharing of community
values and national allegiance." Id. As a result, the Court
concluded that the defendant's "cultural assimilation" to the
United States did not outweigh his checkered criminal history,
and therefore, the defendant was not entitled to a downward
Applying these same factors, the sentencing court in
Martinez-Alvarez, 256 F. Supp.2d at 920-21, granted a
one-level departure based on the finding that the defendant's
"motivation" to illegally reenter the United States was based on
his "cultural assimilation," and therefore, the case was
"sufficiently unusual" to take the "case out of the heartland of
typical re-entry cases." In making this determination, the court considered four
"objective factors." First, the court examined the length of
time the defendant lived in the United States, noting that "a
person who has lived here most of his life [particularly if he
was brought here as a child by his parents] is more likely to
have been assimilated," and thus, motivated to illegally re-enter
the country. Id. at 920. Also relevant to this factor is
whether the defendant "was educated in American schools" and
whether he "was a "lawful permanent resident," both of which
"would advance assimilation." Id.
In contrast to the first factor, the court next examined the
defendant's level of familiarity with his country of origin"
because "a defendant deported to a country he does not know will
have greater motivation to leave than one deported to a more
familiar environment." Id. Relevant to this determination is
whether the defendant has spent "any appreciable" time there,
"particularly as an adult," and whether the defendant speaks his
native language. Id.
Third, the court looked into whether the defendant had strong
"family ties" in the United States because the desire to be with
family "can be a strong motivation to re-enter unlawfully." Id.
Important to this inquiry is whether "all or most of
[defendant's] family live [in the United States]," particularly a
spouse or minor children, and whether the children are legal
United States citizens. Id.
Finally, the court took into account "what the defendant did
and where he went upon re-entry." Id. Noting that a defendant
who "immediately returned to his family" shows a greater
likelihood of cultural assimilation. Id.
Applying the above factors, the court found that all four
"weigh in favor of departure." Id. at 921. The defendant's
mother brought him to the United States as a small child and he had lived here ever since, attending school and eventually
becoming a permanent resident. Id. Because he had "lived
virtually his entire life" in the United States, the court found
that the defendant had "no experience living in Mexico." Id.
Other than his estranged father, the defendant's entire family
resided in the Midwest, including his five year old daughter,
whom he actively supports both emotionally and momentarily. Id.
Within a month of being deported, the defendant illegally
returned to the Midwest to be with his family and began working
to support his family. Id. Finally, the court noted that
defendant was arrested after a traffic stop.
Taking the above facts into account, the court found that "this
case is sufficiently unusual to merit a small departure" because
defendant's "motivation" to illegally reenter the United States
was based on his "cultural assimilation," not on any economic or
criminal motive. Id. In making this determination, the court
noted that "most unlawful re-entry defendants . . . lack
defendant's ties to this country." Id. Also important to the
court was the fact that most other illegal re-entry ...