United States v. Mignott , 184 F.3d 1288 ( 1999 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Wesley Washington MIGNOTT, Defendant-Appellant.
No. 97-4274
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Aug. 16, 1999.
Appeal from the United States District Court for the Southern District of Florida. (No. 96-762-CR-LCN),
Lenore C. Nesbitt, Judge.
Before COX and MARCUS, Circuit Judges, and FAY, Senior Circuit Judge.
PER CURIAM:
Wesley Washington Mignott appeals his 135-month sentence for conspiracy to possess with intent
to distribute cocaine while on board a vessel subject to the jurisdiction of the United States, in violation of
46 U.S.C.App. § 1903(j). Although Mignott does not raise the issue, the government points out that the
district court's deportation order is invalid because the court no longer has jurisdiction to make such an order.
On appeal, Mignott argues that this Court can review the sentencing court's denial of his departure
request based on his offer not to contest deportation because the sentencing court determined that it had no
discretion to depart on such ground. He contends that the district court erred in its denial because it did in
fact have the discretion to base a departure on his willingness to be deported.
Although we generally do not review the merits of a district court's refusal to grant a downward
departure, we may conduct a de novo review of a defendant's claim that the district court mistakenly believed
it lacked the authority to grant such a departure. United States v. Holden, 61 F.3d 858, 860 (11th Cir.1995).
Upon consideration of the plea agreement, sentencing hearing transcript, and presentence
investigation report, and upon consideration of the parties' briefs and relevant law, we affirm the district
court's denial of a downward departure, but we vacate that portion of the district court's judgment ordering
deportation.
The facts are not in dispute. Mignott pled guilty to the charge against him, which was based on the
events surrounding his arrest in international waters 161 miles northeast of the Colombian coast. After a U.S.
Navy helicopter spotted a vessel traveling northwest at a high rate of speed, a U.S. Navy ship changed course
to intercept the vessel. Upon seeing the naval ship, the captain of the vessel increased its speed and headed
south, while the crew dumped overboard packages containing 229.5 kilograms of cocaine. Mignott was one
of the crew members of the vessel.
At sentencing, Mignott requested a departure based on his willingness to submit to deportation
without a hearing. He argued that his cooperation would relieve the government of burdensome deportation
hearings. The sentencing court denied his request, stating that "although I can order immediate deportation
upon completion of the defendant's sentence, it's not grounds for departure, in my view." The court sentenced
Mignott to 135 months' imprisonment. The court also ordered that Mignott be deported upon his release from
prison.
On appeal, Mignott argues that this Court can review the sentencing court's denial of his departure
request based on his offer not to contest deportation because the sentencing court determined that it had no
discretion to depart on such ground. He contends that the district court erred in its denial because it did in
fact have the discretion to base a departure on his willingness to be deported.
The government responds that this Court should not review the district court's decision because the
court knew it had discretion to depart, but declined to do so in Mignott's case. Alternatively, the government
also argues that, even if the district court did not understand its discretion, Mignott has not shown that his
case is outside the heartland because he has not proffered any nonfrivolous defenses to deportation.
Although this Court generally may not review the merits of a district court's refusal to grant a
downward departure, it may conduct a de novo review of a defendant's claim that the district court mistakenly
2
believed it lacked the authority to grant such a departure. United States v. Holden, 61 F.3d 858, 860 (11th
Cir.1995). Here, the district court stated that, although it could "order immediate deportation upon
completion of the defendant's sentence, it's not grounds for departure, in my view." While it appears to us
that the sentencing judge knew he had the authority to depart but that the ground argued did not support the
request, this reading of the statement is not without doubt. Therefore, we will consider the merits of the
arguments presented. United States v. Webb, 139 F.3d 1390,1395 (11th Cir.1998).
Under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range
established by the applicable guideline, if the court finds that a mitigating circumstance exists of a kind, or
to a degree, not adequately taken into consideration by the sentencing commission. See id.; U.S.S.G. §
5K2.0, p.s. Also, absent a guideline or commentary directly addressing a proffered ground for departure,
sentencing courts must determine whether the proffered ground makes the case sufficiently atypical to remove
it from the heartland of cases in which the ground is present. Koon v. United States, 518 U.S. 81, 96, 116
S.Ct. 2035, 2045, 135 L.Ed.2d 392 (1996); United States v. Lewis, 115 F.3d 1531, 1538 (11th Cir.1997),
cert. denied, --- U.S. ----, 118 S.Ct. 733, 139 L.Ed.2d 670 (1998).
Whether a defendant's consent to deportation constitutes a mitigating circumstance of a kind not taken
into consideration by the sentencing commission is a question of first impression in this Circuit. In United
States v. Clase-Espinal, 115 F.3d 1054, 1060 (1st Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 384, 139 L.Ed.2d
299 (1997), the First Circuit determined that it need not decide the issue of whether a stipulation of
deportability may ever be an adequate ground for a § 5K2.0 downward departure. There, the court found that
a defendant convicted of unlawful re-entry subsequent to an aggravated-felony conviction, in violation of 8
U.S.C. § 1326(a), was not eligible for a § 5K2.0 departure because the Sentencing Commission was fully
aware that all defendants convicted under such provision would be subject to deportation and that many
would stipulate to departure. Accordingly, because the defendant had not shown a colorable, nonfrivolous
defense to deportation, no mitigating circumstances existed of a kind not adequately considered by the
3
Commission. Clase-Espinal, 115 F.3d at 1059. Moreover, the court determined that the defendant's
stipulated deportation did not constitute mitigation to a degree not contemplated by the Commission because
an alien without a nonfrivolous defense who stipulates to deportation does not demonstrate a substantial
atypicality. Id.
The Second and Ninth Circuits have adopted the approach of the First Circuit, requiring a showing
of a nonfrivolous defense, as has the Third Circuit with an additional requirement that the government
recommend such departure. See United States v. Galvez-Falconi, 174 F.3d 255 (2d Cir.1999) (a defendant
seeking a § 5K2.0 departure must present a colorable, nonfrivolous defense to deportation, such that the act
of consenting to deportation carries with it unusual assistance in the administration of justice); United States
v. Marin-Castaneda, 134 F.3d 551, 555-56 (3d Cir.) ("a defendant [convicted of importing heroin] without
a nonfrivolous defense to deportation presents no basis for downward departure by simply consenting to
deportation"), cert. denied, --- U.S. ----, 118 S.Ct. 1855, 140 L.Ed.2d 1103 (1998); United States v. Flores-
Uribe, 106 F.3d 1485, 1486 (9th Cir.1997) (defendant convicted of unlawful re-entry not eligible for
departure because the district court had no ability to order deportation, and, therefore, the stipulation had no
practical effect). On the other hand, the Eighth Circuit, without discussion, has found that consent to
deportation constitutes a proper basis for downward departure when the parties have filed a joint motion
requesting it. United States v. Cruz-Ochoa, 85 F.3d 325, 325 (8th Cir.1996); see also, United States v.
Hernandez-Reyes, 114 F.3d 800, 802 (8th Cir.1997) ("The district court here had the authority to depart
downward on the basis that [the defendant] consented to an administrative deportation").
We agree with the position taken by the First, Second, Third and Ninth Circuits. Requiring
defendants to proffer a nonfrivolous defense to deportation before recognizing consent to deportation as a
ground for departure appears sound. Otherwise, a defendant's consent to a deportation against which he has
no apparent defense would be a meaningless concession that fails to remove him from the heartland of other
alien criminal defendants facing deportation. Moreover, although all of the cases, except for Marin-
4
Castaneda, involve defendants convicted of immigration offenses, rather than drug defendants, such
distinction appears to make no difference to whether the Sentencing Commission considered this ground for
departure. It seems unlikely that, in fashioning the guidelines for drug importation, the Commission did not
consider that some defendants would be aliens who might stipulate to deportation.
Here, Mignott has made no suggestion that he has any defense to deportation, arguing only that he
would save the government the expense of a hearing. The value of any stipulation, however, should be
considered de minimis from the standpoint of relieving the government's administrative burden because
Mignott has no discernible defense to deportation. See Clase-Espinal, 115 F.3d at 1059. As a result, the
district court did not have the authority to grant Mignott a downward departure because Mignott showed
neither a mitigating circumstance not adequately considered by the Sentencing Commission nor that his case
was outside the heartland of cases in which an alien faces deportation. We affirm the ruling of the district
court.
The government notes that the district court no longer has the authority to order deportation and
states that this Court should vacate the deportation order and remand the case so that the district court may
determine whether Mignott should be surrendered to the Immigration and Naturalization Service for
deportation proceedings.
On April 1, 1997, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRAIRA") took effect, and provides that a hearing before an immigration judge is the exclusive procedure
for determining whether an alien may be deported from the United States. See 8 U.S.C. § 1229(a)(3). This
Court has held that this legislation eliminated any jurisdiction that district courts had to order deportation and
that the IIRAIRA applies to all cases pending on appeal as of the date of decision, September 10, 1997.
United States v. Alborola-Rodriguez, 153 F.3d 1269, 1272 (11th Cir.1998), cert. denied, --- U.S. ----, 119
S.Ct. 1809, 143 L.Ed.2d 1012 (1999); United States v. Romeo, 122 F.3d 941, 943-944 (11th Cir.1997).
5
Because the district court lacked jurisdiction to order Mignott deported, we vacate the portion of the
district court's judgment ordering deportation and remand for further proceedings consistent with Romeo.
On remand, the district court may either delete the deportation order or modify it to provide that Mignott,
upon completion of his term of imprisonment, shall be turned over to the Immigration and Naturalization
Service for appropriate proceedings under the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996. Because either action on remand will operate in Mignott's favor, the district court need not hold a
new sentencing hearing. See Fed.R.Crim.P. 32.1(b); see also 18 U.S.C. § 3583(e).
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
6