United States v. Guzman, Maira B. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2169
United States of America,
Plaintiff-Appellant,
v.
Maira Bernice Guzman,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 40027--Joe B. McDade, Chief Judge.
Argued November 8, 1999--Decided January 3, 2001
Before Posner, Ripple, and Diane P. Wood, Circuit
Judges.
Posner, Circuit Judge. The government appeals
from a 25-level downward departure granted the
defendant by the sentencing judge because of the
defendant’s "cultural heritage," which is Mexican
(she is a citizen of Mexico, not of the United
States) and because her conviction of a serious
drug offense makes her deportable. She had
pleaded guilty to participating in a conspiracy
to distribute methamphetamine. Had the judge not
granted the downward departure of which the
government complains, the defendant’s sentencing
range would have been 57 to 71 months in prison.
After making the departure, the judge sentenced
her to time served (three days) plus six months
of home detention plus an additional two and a
half years of supervised release.
The other participants in the conspiracy were
two men, one of whom was the defendant’s
boyfriend, also a Mexican. Her role in the
conspiracy was to help him. The presentence
report recommended a downward departure for her
(though it did not recommend a specific number of
offense levels to depart downward by) because
Mexican cultural norms dictated submission to her
boyfriend’s will. Moreover, she had taken up with
him in defiance of her family’s wishes and it
would have been humiliating for her to break with
him and return to her family--especially since
she was pregnant with his child, yet they were
not married.
The government argues that a defendant’s
cultural heritage can never be a basis for a
downward departure. It points to section 5H1.10
of the Sentencing Guidelines, which provides that
"race, sex, national origin, creed, religion, and
socio-economic status" (income, education, and
other indicia of status) "are not relevant in the
determination of a sentence." The Sentencing
Commission adopted this guideline under
Congress’s direction that the guidelines be
"entirely neutral as to the race, sex, national
origin, creed, and socioeconomic status of
offenders." 28 U.S.C. sec. 994(d). There is no
illuminating legislative history, and no case in
this court on whether "cultural heritage" should
be subsumed under any (perhaps a combination) of
the factors expressly excluded by section 5H1.10
from the sentencing judge’s consideration. Two
circuits have held that it should be. United
States v. Contreras, 180 F.3d 1204, 1212 n. 4
(10th Cir. 1999); United States v. Sprei, 145
F.3d 528, 536 (2d Cir. 1998). Several other
circuits, while expressing queasiness at allowing
sentencing judges to consider a characteristic
that overlaps so closely with national origin,
have left open the question whether it may ever
be considered but have declined to hold that it
may never be. See United States v. Tomono, 143
F.3d 1401, 1404 and n. 2 (11th Cir. 1998); United
States v. Yu, 954 F.2d 951, 954 (3d Cir. 1992);
United States v. Natal-Rivera, 879 F.2d 391, 393
(8th Cir. 1989). Some Eighth Circuit cases,
United States v. Decora, 177 F.3d 676, 679 (8th
Cir. 1999); United States v. One Star, 9 F.3d 60,
61 (8th Cir. 1993), and United States v. Big
Crow, 898 F.2d 1326, 1331-32 (8th Cir. 1990),
allow a cultural factor, specifically, having
grown up on an Indian reservation, to be used in
sentencing, but they do so without consideration
of its compatibility with section 5H1.10, the
government apparently not having argued its
incompatibility in those cases.
There is considerable force to the government’s
argument, though precisely how much we need not
decide today. Although culture or, as we think it
more precise to say, ethnicity is not specified
in the guideline or in the statutory provision
that compelled it, this may well have been
because the drafters thought that the exclusions
that are listed encompass ethnicity. To put it
differently, the exclusions might unravel if
ethnicity were an admissible consideration in
sentencing. Race, for example, means rather
little apart from the cultural characteristics
that often are correlated with it. National
origin is also often correlated with ethnicity
and so for that matter is religion, see United
States v. Sprei, supra, 145 F.3d at 536, and, as
we’ll see, gender; and likewise socioeconomic
status, which to a great extent is a function of
one’s upbringing and therefore shaped by the
culture--the ethnicity--of one’s parents. A judge
who wanted to give a break to a black defendant,
or a woman, or a Muslim, or a Colombian would
have no difficulty pointing to ethnic
characteristics that distinguished the defendant
from a white male whose ancestors had come to
America on the Mayflower. Congress and the
Sentencing Commission did not want judges to have
such leeway, which would inject enormous
subjectivity and variance into a sentencing
scheme designed to achieve reasonable objectivity
and uniformity.
There is also tension well illustrated by this
case between recognizing cultural heritage as a
factor warranting a downward departure and the
guidelines’ provision for a downward departure
for a defendant whose role in the crime was
minor, U.S.S.G. sec. 5H.7, and their disapproval
of a downward departure based on family
relationship. sec. 5H1.6. Guzman received a
minor-participant departure, which she is seeking
to multiply by the cultural-heritage route. And
she argues for a cultural-heritage departure in
part on the basis of her relationship with her
family, which she argues prevented her from
leaving her criminal boyfriend; in so arguing she
is seeking to get around section 5H1.6.
This is not to deny the possibility of a causal
relation between ethnicity and a recognized basis
for a downward departure. It just might be the
case that because of some ethnic factor a
defendant’s participation was smaller than it
would otherwise have been--for example, by reason
of being of a different ethnic background from
that of his coconspirators the defendant might
not have been entrusted with more than a very
minor role in the conspiracy. But the judge’s
focus properly would be on the extent of the
defendant’s participation, not on the ultimate
(which might be ethnic) causes of that extent. So
ethnicity can play a causal role in relation to
other departure factors and it can also be
another name for characteristics that the
guidelines forbid consideration of. In neither
class of cases is it properly used as an
independent ground for a departure.
We are concerned about the danger that
recognizing cultural heritage as an independent
ground for departure presents both of
perpetuating stereotypes and (though not of great
moment in a drug case) of stripping whole classes
of potential crime victim of the full protection
of the law. One can imagine, in a case in which
the defendant had murdered a homosexual, the
defendant’s lawyer pleading for a downward
departure on the ground that the defendant had
been culturally sensitized to believe that a
sexual overture from another man was a lethal
challenge to his masculinity. Or a case in which
the defendant tried to blame a revenge killing on
his Balkan heritage, with its tradition of the
blood feud. In a case in which the defendant had
beaten his wife for talking back to him, one can
imagine an argument that the defendant was
predestined to such conduct by his Latin heritage
of patriarchal values. Women such as the
defendant in this case are not acknowledged to
possess autonomy equal to that of men when their
cultural heritage is used to deny their power of
free choice. There is also the anomaly that a
Mexican-American born in this country might be
allowed to plead ethnicity, whereas one who had
immigrated recently to the United States would be
barred by the national-origin provision of the
guideline. We cannot see what sense that
distinction would make.
Although for these reasons we lean to the view
that section 5H1.10 of the guidelines does forbid
consideration of ethnicity or "cultural heritage"
in the sentencing decision, we need not so hold
today and by doing so exclude all possibility of
consideration of cultural factors in cases that
we cannot yet foresee. (Dissenting in United
States v. Yu, supra, Chief Judge Becker suggested
a hypothetical case in which the defendant can
anticipate severe private punishment from his
ethnic community on top of whatever punishment
the legal system metes out. 954 F.2d at 959. We
needn’t try to wrestle such a case to the ground
today--it may not even ever arise.) It is enough
in order to decide this case to note that the
sentencing judge abused his discretion in
granting this defendant a downward departure (let
alone one of 25 levels) on the basis of her
cultural heritage. What the district judge
regarded as a matter of cultural heritage is just
the joinder of gender and national origin, two
expressly forbidden considerations in sentencing.
Because the defendant is a Mexican woman, she may
have been more likely to participate in her
boyfriend’s criminal activity than if she had
been an Anglo male. To use that as a basis for a
departure would wreak havoc with section 5H1.10.
The Sentencing Commission could not have wanted
sentencing courts to pile on the stereotypes by
combining forbidden categories, so that while
forbidden to consider sex or race or religion the
judge could for example give a break to the
defendant because she was a black woman of the
Muslim faith.
It remains to consider the other ground for a
downward departure, the fact that the defendant
is a deportable alien. The judge did not explain
his reasoning, but the defendant’s lawyer had
argued that deportation is a form of punishment
and therefore a given sentence imposes greater
punishment on a deportable alien than on a
citizen. This is wrong. It implies that any alien
who commits a crime should receive a shorter
sentence than a citizen. Such a rule would invite
aliens who did not want to live in the United
States to come here to commit crimes. The "double
punishment" argument has been rejected in the
double-jeopardy setting, United States v.
Yacoubian, 24 F.3d 1, 9-10 (9th Cir. 1984), and
we now join the courts that have held that it
should equally be rejected in sentencing. United
States v. Tejeda, 146 F.3d 84, 88 (2d Cir. 1998)
(per curiam); United States v. Leandre, 132 F.3d
796, 808 (D.C. 1998); United States v. Alvarez-
Cardenas, 902 F.2d 734, 737 (9th Cir. 1990). But
this leaves the possibility also argued by the
defendant that the status of being a deportable
alien can affect the conditions of imprisonment,
can make them harsher by disentitling a defendant
to serve any part of his sentence in a halfway
house, minimum security prison, or intensive
confinement center, United States v. Restrepo,
999 F.2d 640, 642-43 (2d Cir. 1993), so that the
same nominal prison sentence would be, quite
apart from the sequel of deportation, a more
severe punishment than if the defendant were a
citizen.
Although several cases hold that since these are
congressionally required or desired incidents of
deportation, a downward departure motivated by
them would undermine legislative policy, id. at
645-46; United States v. Veloza, 83 F.3d 380, 382
(11th Cir. 1996), overruled on other grounds,
United States v. Campbell, 181 F.3d 1263 (11th
Cir. 1999) (per curiam); United States v. Nnanna,
7 F.3d 420, 422 (5th Cir. 1993) (per curiam), our
court, and likewise the D.C. Circuit, have held
them to be a permissible basis, in exceptional
circumstances, for a downward departure. United
States v. Farouil, 124 F.3d 838, 845-47 (7th Cir.
1997); United States v. Smith, 27 F.3d 649, 654-
56 (D.C. Cir. 1994); cf. United States v.
Davoudi, 172 F.3d 1130, 1133-34 (9th Cir. 1999).
But we emphasize that the defendant’s status as a
deportable alien is relevant only insofar as it
may lead to conditions of confinement, or other
incidents of punishment, that are substantially
more onerous than the framers of the guidelines
contemplated in fixing the punishment range for
the defendant’s offense. The district judge
remains free to consider this possibility on
remand, though obviously it would not justify a
downward departure of 25 levels. Double-digit
departures are reserved for truly exceptional
cases, and the differences in the conditions of
confinement or other incidents of punishment
between deportable aliens and other citizen (or
nondeportable alien) defendants, set forth in the
cases we have cited, are not great. Smith points
out that to a large extent those differences
reflect factors, such as flight risk, that would
not warrant a downward departure at all. 27 F.3d
at 655.
We further remind that when basing departures on
factors not explicitly considered by the
Sentencing Commission, a judge is to strive to
remain within the conceptual universe of the
guidelines, moving by analogy from its explicit
provisions and stated objectives to the novel
situation presented by the case before him.
United States v. Koon, 518 U.S. 81, 96 (1996);
United States v. Sherman, 53 F.3d 782, 789 (7th
Cir. 1995).
The sentence is vacated and the case returned to
the district court for resentencing in conformity
with this opinion.
Reversed and Remanded.
RIPPLE, Circuit Judge, concurring in part,
dissenting in part. Ms. Guzman sought a downward
departure from the applicable sentencing range
because she claimed that her Mexican cultural
heritage required submission to her boyfriend’s
will, especially in light of the fact that she
was carrying his child and that her relationship
with him defied her family’s wishes. My
colleagues reject Ms. Guzman’s arguments as if
she seeks nothing more than a departure based on
her sex and national origin, two "forbidden"
factors under U.S.S.G. sec. 5H1.10. Furthermore,
they question whether cultural heritage can ever
be a basis for a departure, slip op. at 3-5,
although their discussion on this point seems
superfluous given their conclusion that the facts
presented here do not require them to reach this
ultimate question, slip op. at 5 ("It is enough
in order to decide this case to note that the
sentencing judge abused his discretion in
granting this defendant a downward departure (let
alone one of 25 levels) on the basis of her
cultural heritage.").
I write separately because I believe that, in
order to determine the propriety of Ms. Guzman’s
proposed departure, we must first answer the
antecedent question: whether cultural heritage
can be a basis for departing from an otherwise
applicable sentencing range. As set forth below,
I believe that cultural heritage has a meaning
distinct from the "forbidden" factors set forth
in sec. 5H1.10, whether taken individually or in
combination. Furthermore, the Commission has
stated explicitly that, with the exception of the
factors listed in sec. 5H1.10,/1 it "does not
intend to limit the kinds of factors, whether or
not mentioned anywhere else in the guidelines,
that could constitute grounds for departure in an
unusual case." 2000 U.S.S.G. ch. 1, pt. A, intro.
comment. 4(b). For these reasons, I cannot but
conclude that the guidelines permit a district
court to consider cultural heritage as a basis
for a downward departure in the unusual case.
Indeed, in light of the Commission’s silence, and
in the absence of other evidence of the
Commission’s or Congressional intent, judicial
elimination of "cultural heritage" as a possible
basis for departure would usurp the unique
legislative function served by the Commission.
1.
a.
Although I disagree with my colleagues’
conclusion, I recognize that the resolution of
the issue before the panel is not
straightforward. The issue of how to treat
"cultural heritage" under the guidelines is made
more difficult by the relatively meager
discussion of the subject by the cases that have
addressed it./2 For instance, the Eighth Circuit
has held that Congress has the authority, as a
constitutional matter, to forbid consideration of
a defendant’s cultural background in sentencing
and that a district court does not violate the
constitutional rights of the defendant by
refusing to take this factor into account in
sentencing a defendant. See United States v.
Natal-Rivera, 879 F.2d 391, 393 (8th Cir. 1989).
Nevertheless, that circuit has recognized that a
sentencing court may take into consideration the
"unusual mitigating circumstances of life on the
Indian reservation." United States v. Decora, 177
F.3d 676, 679 (8th Cir. 1999); United States v.
One Star, 9 F.3d 60, 61 (8th Cir. 1993). Two
circuits have commented on the difficulty of
taking into consideration cultural differences
while avoiding the forbidden factor of national
origin. The Eleventh Circuit has noted that
"considering any ’cultural differences’
attributable solely to a defendant’s country of
origin comes uncomfortably close to considering
the defendant’s national origin itself, in
contravention of the guidelines." United States
v. Tomono, 143 F.3d 1401, 1404 n.2 (11th Cir.
1998). The Third Circuit similarly has
acknowledged the difficulty in distinguishing
between certain cultural differences and the
Congressionally-forbidden criterion of national
origin. See United States v. Yu, 954 F.2d 951,
954 (3d Cir. 1992). Although suggesting in dicta
that it was "doubtful at best" that district
courts ought to be allowed to consider cultural
differences under the guidelines, id. at 954 n.2,
the court also noted that "it is conceivable that
an unschooled recent immigrant or a foreign
traveler might reasonably point to practices in
his country of origin that would justify a
downward departure on the grounds that while he
intended to do the acts for which he was
convicted and was thus criminally liable, he did
not recognize the extent of his culpability in
this country." Id. at 954. The majority did not
reach the question of whether cultural heritage
might be a factor in sentencing; however, now-
Chief Judge Becker, writing in dissent, reached
this issue and wrote that cultural heritage and
national origin are different. See id. at 957-59(Becker, J., dissenting); see also Tomono, 143
F.3d at 1405 (Roney, J., dissenting) (following
Chief Judge Becker’s dissent in Yu).
b.
Legislative materials other than the text of the
guideline offer little guidance as well. The
concept of cultural heritage is not discussed in
the guidelines’ enabling statute, that statute’s
legislative history, or in the guidelines
themselves. As Chief Judge Becker wrote in Yu, it
seems clear that U.S.S.G. sec. 5H1.10--the
section prohibiting the consideration of race and
national origin--was based on Congress’ directive
to the Commission in 28 U.S.C. sec. 994(d) that
the guidelines and policy statements be "entirely
neutral as to the race, sex, national origin,
creed, and socioeconomic status of offenders." 28
U.S.C. sec. 994(d).
The legislative history of this section does not
offer much further explanation:
Subsection (d) contains a specific provision that
the Commission shall assure that the guidelines
and policy statements are entirely neutral as to
the race, sex, national origin, creed, and socio-
economic status of offenders. The Committee added
the provision to make it absolutely clear that it
was not the purpose of the list of offender
characteristics set forth in subsection (d) to
suggest in any way that the Committee believed
that it might be appropriate, for example, to
afford preferential treatment to defendants of a
particular race or religion or level of
affluence, or to relegate to prisons defendants
who are poor, uneducated, and in need of
education and vocational training.
S. Rep. No. 98-225, at 171 (1983), reprinted in
1984 U.S.C.C.A.N. 3182, 3354 (quotation marks and
footnotes omitted). This directive does not
require the Commission to prohibit consideration
of a defendant’s cultural heritage, nor has the
Commission chosen to do so.
c.
Although legal sources directly associated with
the guidelines offer no definitive guidance on
the matter, it is clear that neither the law nor
other disciplines have considered the concepts of
cultural heritage and national origin to be
coterminous. Chief Judge Becker wrote:
[I]f we must take a plain language view of the
matter, it seems plain to me that cultural and
national origin distinctions are not the same.
Many Chicanos are American-born but have a
distinct culture. A foreign-born person may have
moved here as a child and have no noticeable
cultural differences.
Yu, 954 F.2d at 958 (Becker, J., dissenting).
Chief Judge Becker’s analysis is supported by
other legal sources, which define cultural
heritage as a set of behavioral characteristics
and therefore significantly dissimilar from the
immutable characteristics of race and national
origin. For instance, Oregon’s child care
regulations provide a definition of cultural
heritage that focuses on behavior./3 Legal
commentators have explained that cultural
heritage is a social construct, not a
characteristic of birth./4
Even when it is not specifically defined, the
term cultural heritage stands apart from the
terms race and national origin. Several states,
including Maryland, Massachusetts, Ohio, and
Washington, separate cultural heritage from race
and national origin in their regulations
governing child custody and placement./5 Each of
these states has case law holding that a
regulation should be interpreted to avoid
rendering superfluous any of its terms./6
Academic literature from other disciplines on
the subject of cultural heritage explains that
cultural heritage is manifested through behavior.
The seminal anthropological definition of
"culture" was written by Sir Edward Burnett
Tylor./7 Tylor’s definition focuses on acquired
societal characteristics. In his book Primitive
Culture, first published in 1871, Tylor wrote:
Culture or civilization, taken in its wide
ethnographic sense, is that complex whole which
includes knowledge, belief, art, morals, law,
custom, and any other capabilities acquired by
man as a member of society.
Id. at 1. More recently, Melville J. Herskovits
wrote that culture is a learned trait, not an
immutable one. See Melville J. Herskovits, Man
and His Works 17 (1967) ("There is general
agreement that culture is learned[.]"). Further,
Herskovits explicitly distinguished culture from
national origin:
Race, nationality, language, and culture are in
actuality independent variables. They meet only
in the persons of given individuals who belong to
a particular race, are citizens of a specific
nation, speak a certain language, and live in
accordance with the traditions of their society.
Id. at 149. Moreover, Richard D. Alba, in Ethnic
Identity: The Transformation of White America
(1990) writes that "[e]thnic culture embraces the
patterned, commonplace actions that distinguish
members of one ethnic group from another,
including food, language, and holiday ceremony."
Id. at 76. In the same vein, Milton M. Gordon,
writing in Assimilation in American Life (1964),
has said that "[c]ulture, as the social scientist
uses the term, refers to the social heritage of
man--the ways of acting and the ways of doing
things which are passed down from one generation
to the next, not through genetic inheritance but
by formal and informal methods of teaching and
demonstration." Id. at 32. Larry L. Naylor, in
Culture and Cultural Groupings, in Cultural
Diversity in the United States (Larry L. Naylor,
ed., 1997), notes that "[t]raditionally,
anthropologists have used culture to describe
groups of people inhabiting certain geographical
areas who share beliefs, behaviors, customs, or a
total way of life." Id. at 7.
Because an individual’s cultural heritage
encompasses a set of beliefs and a manner of
behavior that exist conceptually and practically
quite apart from that individual’s immutable sex,
race or national origin, I believe that cultural
heritage should not be considered a prohibited
basis for departure under the wording of the
current guideline. Indeed, nowhere in the
guidelines does the term cultural heritage
appear; it is thus best categorized as what the
Supreme Court has described as an unmentioned
factor. See Koon v. United States, 518 U.S. 81,
96 (1996). Reliance on unmentioned factors is not
absolutely prohibited, see United States v. Meza,
127 F.3d 545, 548-49 (7th Cir. 1997); instead, a
court must look at what circumstances might
justify a departure based on a defendant’s
cultural heritage.
2.
To determine whether a departure based on an
unmentioned factor is appropriate in a particular
case, the sentencing court must consider both
specific relevant guidelines and the structure of
the guidelines as a whole. See Koon, 518 U.S. at
96; United States v. Raimondi, 159 F.3d 1095,
1101 n.16 (7th Cir. 1998); United States v.
Schulte, 144 F.3d 1107, 1109 (7th Cir. 1998).
Now-Chief Judge Flaum has written for this court:
[A] departure based on an unmentioned factor is
appropriate only in the limited situations in
which the proposed factor places a case outside
the heartland of cases contemplated by both the
specific, relevant guideline(s) and the
Guidelines as a whole. The Sentencing Commission
views this departure power as quite limited and
expects "that departures based on grounds not
mentioned in the Guidelines will be ’highly infrequent.’"
Schulte, 144 F.3d at 1109-10 (citations omitted).
Like many of the "specific offender
characteristics" listed in Chapter 5, part H of
the guidelines, cultural heritage is not
ordinarily relevant in the computation of a
sentence; it would justify a departure only if it
were present to an extraordinary degree.
Moreover, "if a defendant [were to seek] a
departure nominally based upon ’cultural
differences’ that [was] in reality based on
personality characteristics of the sort listed in
U.S.S.G. sec.sec. 5H1.1 to 5H1.6 and 5H1.11,
departure [would be] ordinarily (but not always)
improper because the Commission has said in those
guidelines that those factors ’are not ordinarily
relevant’ in departure determinations." Yu, 954
F.2d at 958-59 (Becker, J., dissenting).
Because it is an unmentioned factor that is
related to, although not coterminous with,
discouraged factors, a defendant’s cultural
heritage must have been an extraordinary
influence to justify a departure. The influence
must have been strong enough to place the
defendant’s situation outside the heartland of
cases in which a defendant’s personal
characteristics might be expected to influence
behavior. District courts must be extremely
circumspect in their reliance on this factor and
thoroughly justify any departure granted on this
basis. As noted by my colleagues, although
cultural heritage is different from race or
national origin, the two are often linked. See
Yu, 954 F.2d at 958 (Becker, J., dissenting).
Defendants, therefore, might ask for departures
based on factors they describe as relating to
their cultural heritage that in reality derive
solely from their race or national origin. A
sentencing court granting a departure on the
basis of cultural heritage therefore would need
to explain why the departure was grounded in the
defendant’s culturally acquired behavioral
characteristics rather than sex, race or national
origin. Careful scrutiny by the sentencing courts
is necessary to ensure that no downward
departures conflict with the mandate of U.S.S.G.
sec. 5H1.10. It also would be possible for a
defendant to assert a basis for departure that
would be so contrary to the values protected by
the criminal statute that he had violated, or so
contrary to public morals, that no departure
ought to be allowed.
3.
The question remains, then, whether using
cultural heritage as a basis for a downward
departure was appropriate in the present case.
The district court’s explanation of why it relied
on Ms. Guzman’s cultural heritage in departing is
not extensive. Indeed, given the analysis that a
sentencing court must employ in determining
whether to depart based on a disfavored factor, I
believe the district court’s discussion in the
present case is inadequate. Therefore, I would
remand this matter to the district court to
reconsider its decision to depart in light of the
principles outlined above. Although I believe
that the district court correctly found that
cultural heritage is a permissible basis for
departure, I believe it appropriate for the court
to reconsider its decision and to explain in more
detail any departure that it deems appropriate.
Furthermore, any departure must be tied to the
structure of the guidelines.
Conclusion
I do not believe that the Sentencing Guidelines,
as presently written, forbid a district court
from considering a defendant’s cultural heritage
as a basis for departing from the guidelines
under the appropriate circumstances. Therefore, I
cannot join that portion of the panel’s opinion
that reaches a contrary conclusion. With respect
to the other issues raised in this appeal, namely
whether the district court properly exercised its
discretion concerning Ms. Guzman’s deportability
and the degree to which it departed from the
applicable guideline range, I join the panel
opinion.
/1 In addition to those listed in sec. 5H1.10, the
Commission also identified other factors "that
the court cannot take into account as grounds for
departure," 2000 U.S.S.G. ch. 1, pt. A, intro.
comment. 4(b), such as lack of guidance as a
youth, see sec. 5H1.12, and chemical dependence,
see sec. 5H1.4; those additional factors,
however, are not relevant to the present case.
/2 See, e.g., United States v. Contreras, 180 F.3d
1204, 1212 n.4 (10th Cir.), cert. denied, 528
U.S. 904 (1999); United States v. Sprei, 145 F.3d
528, 536 (2d Cir. 1998).
/3 Oregon’s definition distinguishes cultural
heritage from race or national origin: "’Cultural
heritage’ means the language, customary beliefs,
social norms, and material traits including, but
not limited to the dress, food, music and dance
of a racial, religious or social group that is
transmitted from one generation to another." Or.
Admin. R. 413-070-0010 (1998).
/4 See Rachel F. Moran, What if Latinos Really
Mattered in the Public Policy Debate?, 85 Cal. L.
Rev. 1315, 1338-40 (1997); Juan F. Perea,
Democracy & Distrust: An Essay on American
Languages, Cultural Pluralism, and Official
English, 77 Minn. L. Rev. 269 (1992).
/5 See Md. Regs. Code. tit. 7, sec. 02.25.06A(5)
(2000) ("A local department shall select and
maintain as foster parents, individuals who have
the following characteristics: . . . The capacity
to value, respect, appreciate, and educate a
child regarding the child’s racial, ethnic,
religious, and cultural heritage . . . ."); Mass.
Regs. Code tit. 102, sec. 1.03 (1999) ("The
licensee shall not discriminate in providing
services to children and their families on the
basis of race, religion, cultural heritage,
political beliefs, national origin, marital
status, sexual orientation, or disability.");
Ohio Admin. Code sec. 5101:2-7-09(B) (1999) ("A
foster caregiver shall not discriminate in
providing care and supervision to foster children
on the basis of race, sex, religion, or cultural
heritage."); Wash. Admin. Code sec. 388-73-216(3)
(1999) ("Child-placing agencies shall consider
the racial, ethnic, and cultural heritage needs
of the child being placed. At the same time, the
agency shall prevent discrimination on the basis
of race, color, or national origin against any of
its clients.").
/6 Maryland and Massachusetts both have held
explicitly that regulations should be interpreted
to avoid finding any redundancy in their
language. See Chesapeake Indus. Leasing Co. v.
Comptroller of the Treasury, 628 A.2d 234, 240
(Md. 1993); Emerson Hosp. v. Rate Setting Comm’n,
563 N.E.2d 681, 683 (Mass. 1990). Ohio has
applied this canon of construction to statutes,
see State ex rel. Bohan v. Industrial Comm’n, 70
N.E.2d 888, 889 (Ohio 1946), and appears to apply
it to agency rules, see State ex rel. R. Bauer &
Sons Roofing & Siding, Inc. v. Industrial Comm’n
of Ohio, 701 N.E.2d 995, 999 (Ohio 1998) (per
curiam) (applying this canon to the Industrial
Commission’s rules). Courts in Washington also
apply the canon to agency regulations. See Aponte
v. Department of Social & Health Servs., 965 P.2d
626, 632 (Wash. Ct. App. 1998) (citing Cox v.
Helenius, 693 P.2d 683, 686 (Wash. 1985) (en
banc)).
/7 See William A. Haviland, Cultural Anthropology 30
(7th ed. 1993) ("The culture concept was first
developed by anthropologists toward the end of
the nineteenth century. The first really clear
and comprehensive definition was that of the
British anthropologist Sir Edward Burnett
Tylor."); A.L. Kroeber & Clyde Kluckhohn, Culture
85 (1952) ("Tylor’s definition . . . has been,
and continues to be, quoted numberless
times[.]").