United States v. Egwaoje, Benjamin ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2868
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BENJAMIN EGWAOJE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 CR 655—James B. Zagel, Judge.
____________
ARGUED APRIL 18, 2003—DECIDED JULY 9, 2003
____________
Before EASTERBROOK, KANNE, and DIANE P. WOOD, Circuit
Judges.
KANNE, Circuit Judge. On the morning of his trial for
credit-card fraud, defendant Benjamin Egwaoje informed
the district court that he no longer required the services of
his attorney—his third since he had been indicted and the
second to be appointed by the court—and that he wished to
proceed pro se. After warning him about the dangers of self-
representation, the district court reluctantly granted his re-
quest but asked that his former attorney remain to assist
him as standby counsel. The district court also denied
Egwaoje’s request for a continuance (which he had argued
was necessary in order for him to prepare to act as his own
advocate) and the trial commenced as scheduled. At the
2 No. 02-2868
conclusion of his two-day trial, a jury found him guilty on
both counts of the indictment. The court sentenced him to
a twenty-seven-month prison term, to be followed by a
three-year term of supervised release, and ordered him to
pay $38,985 in restitution.
Egwaoje appeals his conviction and sentence arguing (1)
that he did not make a knowing and intelligent waiver of
his right to counsel; (2) that the district court abused its
discretion in not granting his request for a continuance; (3)
that his pro se representation resulted in a trial so lacking
in fundamental fairness that he was denied due process of
law; and (4) that the district court erred in refusing to con-
sider his motion for downward departure at sentencing
based on his status as a deportable alien. We reject all his
arguments and affirm both his conviction and sentence.
HISTORY
The Crime
Egwaoje spent the summer months of 2001 visiting
several Chicago-area banks, withdrawing thousands of dol-
lars in cash by using credit cards that he had obtained
through fraudulent means. It was a lucrative venture for
Egwaoje; he swindled the target banks out of nearly
$39,000. But while Egwaoje’s summer may have been pro-
fitable, it was not endless. On July 17, 2001, a repeat visit
to one particular bank location alerted a bank employee,
who recognized Egwaoje but remembered him previously
using a different name to withdraw funds. Her suspicions
raised, the teller stalled Egwaoje and called the police, who
promptly arrived to arrest him. The officers found Egwaoje
to possess the fraudulently obtained credit card that he had
tried to use to withdraw funds as well as fake identification
cards in the name of the cardholder.
No. 02-2868 3
Pretrial Proceedings
Egwaoje retained attorney Gary Sternberg to represent
him at his July 23, 2001 preliminary hearing in front of a
magistrate. The magistrate judge found probable cause for
his arrest, and a grand jury subsequently returned a two-
count indictment against Egwaoje on August 15, 2001,
charging credit-card fraud in violation of 18 U.S.C.
§ 1029 (a)(2) (use of unauthorized credit cards to obtain
cash advances from different banks in an amount in excess
of $1000) & (b)(1) (attempting to obtain a cash advance with
an unauthorized credit card).
Months later, on November 5, 2001, Sternberg moved to
withdraw from representing Egwaoje because his client had
refused to meet with him and because of “substantial con-
flicts” between them. The district court granted Sternberg’s
motion and appointed Leonard Goodman, a member of the
federal defender panel, to represent Egwaoje.
Egwaoje next appeared before the district court at a
December 7, 2001 status hearing, where he personally ad-
dressed the court to demand a speedy trial. After asking the
government to forecast the trial’s length and complexity,
the district court set the case for trial on January 28, 2002,
telling Egwaoje he would receive the speedy trial that he
had requested. Because Goodman had been unable to at-
tend the status hearing (another attorney was filling in for
him), the district court informed Egwaoje that the January
28 trial date might prove inconvenient for his newly ap-
pointed attorney and, if so, may have to be adjusted
slightly; however, the court would not allow Goodman to
move the date much. The district court explained that at
the latest, it expected to be able to bring Egwaoje to trial
sometime in February. Egwaoje okayed the proposed sched-
ule.
The following week, the district court held a hearing to
consider Egwaoje’s motion for release on bond pending trial.
4 No. 02-2868
The court denied the motion. But Goodman attended the
hearing and confirmed that he could accommodate a
January 28 trial date. He also discussed the possibility that
his client would plead guilty, but informed the court that he
didn’t have the discovery he needed to predict Egwaoje’s
criminal history category accurately, which prevented his
client from making an informed plea decision. The court
asked the parties to investigate the matter further and
report back within a week.
The parties returned to court on December 21, 2001, and
Egwaoje promptly renewed his speedy-trial requests. After
the court had agreed to hold another status hearing in two
weeks because Goodman still had yet to receive the infor-
mation he needed, Egwaoje interrupted, stating “I don’t
want no time. I want a speedy trial. I say that before.” The
court tried to explain to Egwaoje that he needed more time
so that he could make an informed plea decision:
The truth of the matter is, if I told you, “You are going
to trial tomorrow,” which I couldn’t because today is a
Saturday, your attorney would, with good reason, not be
ready. You would be convicted and there would be
absolutely no point to proceeding that quickly. We have
got to have some time to check into [Egwaoje’s criminal
history category] in order to make a good decision.
Egwaoje insisted, “I am ready for trial,” to which the court
reiterated that, in its opinion, he was not, and that Egwaoje
would be unhappy with the outcome of an unduly hurried
trial. Seeking clarification, Goodman asked whether the
January 28 trial date would be rescheduled, and the court
indicated that while the trial may not proceed on the 28th,
it would still begin around that date.
Goodman’s relationship with Egwaoje deteriorated in the
following weeks. At the next status hearing on January 3,
2002, Goodman informed the court that the parties were at
an impasse in plea negotiations and, as such, requested
No. 02-2868 5
that the case be scheduled for trial as soon as possible. The
court reset the trial date for February 11, 2002. Egwaoje
then addressed the court, “[Goodman] already told me he
can’t beat the case. He is not ready to go to trial.” The court
informed Egwaoje that his lawyer’s comments did not re-
flect his unpreparedness for trial, but rather were an as-
sessment of the strength of Egwaoje’s case. Regardless of
his lawyer’s advice, the court clarified that the decision to
proceed to trial or plead guilty lay entirely with Egwaoje.
Within a month, and five days before the scheduled start
of trial, Goodman moved the court to withdraw from repre-
senting Egwaoje. Like he had done previously with Stern-
berg, Egwaoje was refusing to meet and cooperate with
Goodman. The court asked Egwaoje whether he wanted a
new lawyer or wished to proceed without one. Egwaoje
replied with a nonsequitur about his reasons for failing to
meet with Goodman and about his insistence that the case
proceed to trial. In response to further questioning,
Egwaoje told the court that he wanted another attorney.
The court then allowed Goodman to withdraw and told
Egwaoje that it would appoint him another attorney but
that under the circumstances it would have to move the
trial date to March 18 or March 25 at the latest. Once again
Egwaoje objected, “I still want my speedy trial.”
On February 26, 2002, Egwaoje’s third attorney, Richard
Halprin, appeared on his behalf at yet another status hear-
ing. Halprin told the court that he had not had the chance
to meet with Goodman to discuss Egwaoje’s case but that,
regardless, he could be ready for trial on March 25. He also
promised to inform the court should any problems arise be-
tween him and Egwaoje. Later that day, the court set the
trial date for March 25, but then subsequently reset the
date for April 2, 2002.
6 No. 02-2868
The Trial
The morning of his scheduled trial date—after having
spent approximately eight months in custody during which
he repeatedly and consistently petitioned the court for a
speedy trial—Egwaoje changed his tune and told the court
he wanted a sixty-day continuance: he claimed not to know
that his trial was set to begin that day, he wanted to fire
Halprin, and he needed the additional time to prepare his
defense. The court denied the request:
No, I am not giving you sixty days. I have set the sched-
ule. I have seen in you a course of conduct that has
been nothing but an attempt to frustrate the govern-
ment’s effort to bring you to trial, to play games, to de-
mand a speedy trial, and then to demand a continu-
ance. This is your third lawyer.
Egwaoje then responded, “I am going to go pro se.” The
court told Egwaoje that if he so wished he could represent
himself, but it would be a foolish decision:
If you wish to proceed pro se, you are entitled to do so.
The United States Constitution guarantees your right
to proceed as your own lawyer. If you wish to proceed
as your own lawyer, I am required to admonish you
that to represent yourself in any criminal case is a fool-
ish act. You will almost certainly make significant tac-
tical errors. You will almost certainly put yourself in a
position where even if you had a lawful defense, you
would be unable to present it in a coherent way. On top
of it, you will not, I think, adequately preserve the rec-
ord in this case if error has been made. So I strongly
advise you against representing yourself. But I do tell
you that that is your decision. You may choose to repre-
sent yourself, or you may choose to have Mr. Halprin
represent you. The choice is yours.
If Egwaoje chose to represent himself, the court continued,
No. 02-2868 7
it would request Halprin to remain in the courtroom to as-
sist the defendant as standby counsel.
When Egwaoje replied by reducing the length of his origi-
nal continuance demand to thirty days, the court informed
him that regardless of his decision on whether to proceed
pro se, his request for a continuance was going to be de-
nied—his trial was starting that day. Egwaoje then de-
nounced Halprin, telling the court he no longer had a law-
yer and reiterating that he wished to proceed pro se. The
court granted Egwaoje’s request after once again informing
him of his foolishness, and Halprin agreed to stay on as
standby counsel. The court recessed for two hours so that
Egwaoje could prepare his defense.
The evidence introduced against Egwaoje at trial included
(1) the teller’s testimony that Egwaoje had sought to receive
cash advances from her under the names Grant Abbott,
Hugh Ball, and Eugene Kientzy; (2) bank surveillance pho-
tos showing Egwaoje at the teller counters where he tried
to get cash using those aliases; (3) the arresting officer’s
testimony regarding Egwaoje’s final attempt and the mate-
rials recovered from him upon his arrest; and (4) the testi-
mony of two of the victims whose identity Egwaoje had
stolen.
During the course of the trial, Egwaoje didn’t object to
any evidence that the government offered, was repeatedly
admonished by the court for asking irrelevant questions
and making argumentative statements during cross-exam-
ination, and presented no witnesses or evidence in his own
defense. The jury convicted Egwaoje on both counts.
Post-trial Proceedings and Sentencing
Egwaoje filed a variety of pro se post-trial motions
challenging his conviction, which the court treated as one
8 No. 02-2868
motion for a new trial. After hearing from Egwaoje in sup-
port of his motion, the court made extensive factual find-
ings. It concluded that Egwaoje (1) knew that his trial was
scheduled to begin on April 2; (2) understood that he had no
defense to the credit-card-fraud charges and so engaged in
a pattern of obfuscation and obstructionism in his pretrial
dealings with the court in an attempt to create an appeal-
able issue; (3) fully understood the risk of going to trial, but
lacking any defense, knowingly and intelligently waived his
right to counsel and resolved to represent himself in the
hope that he could personally invoke the jury’s sympathy;
and (4) made errors in the course of his pro se representa-
tion, which was to be expected, but also reaped the benefit
of being able to argue his story to the jury without having
to testify and subject himself to the rigors of cross-examina-
tion. The court denied the motion.
At his sentencing hearing on July 12, 2002, Egwaoje
made a motion for downward departure based on his sta-
tus as a deportable alien. The district court determined
that the applicable guideline range was between twenty-one
and twenty-seven months and then sentenced Egwaoje to
the highest sentence within the range plus three-years su-
pervised release. It also ordered him to pay $38,985 in
restitution. After the prosecutor noticed that the court had
not announced its ruling on the downward-departure mo-
tion, the court stated, “The motion for downward departure
was considered and denied; largely because if there is any
ground for departure in this case, it is a ground for an up-
ward departure rather than a downward one.”
ANALYSIS
I. Right to Counsel
Under the Sixth Amendment, a criminal defendant has a
constitutional right to waive the assistance of counsel and
No. 02-2868 9
to represent himself at trial. Faretta v. California, 422 U.S.
806, 819-20 (1975). To ensure that the right of self-repre-
sentation is properly invoked—or, conversely, that the right
to counsel is properly waived—the Supreme Court has
cautioned that a defendant “should be made aware of the
dangers and disadvantages of self-representation, so that
the record will establish that he knows what he is doing
and his choice is made with eyes open.” Id. at 835 (quota-
tions omitted). At its broadest, this directive can be read to
support a two-prong inquiry: Did the district court warn the
defendant of these dangers? And did the defendant under-
stand that warning?
To guide that inquiry this Court has considered “(1)
whether and to what extent the district court conducted a
formal hearing into the defendant’s decision to represent
himself, (2) whether there is other evidence in the record
that establishes that the defendant understood the disad-
vantages of self-representation, (3) the background and ex-
perience of the defendant, and (4) the context of the defen-
dant’s decision to proceed pro se.” United States v. Avery,
208 F.3d 597, 601 (7th Cir. 2000) (citations omitted). This
is not a formalistic, mechanical approach. Regardless of the
consideration of these individual factors, our inquiry at all
times is directed to the record as a whole and we ask
whether that record supports a knowing and intelligent
waiver. Id. If it does, we will uphold the district court’s de-
cision. See United States v. Sandles, 23 F.3d 1121, 1126 (7th
Cir. 1994).
Egwaoje doesn’t deny that he made an express statement
to the court indicating his desire to proceed pro se. His
principal contention on appeal is that the district court
didn’t do enough by way of a thorough and formal inquiry
to ensure that his eyes weren’t closed to the dangers of self-
representation when he spoke. To ensure that his right was
not waived blindly, Egwaoje would have us compare the in-
10 No. 02-2868
quiry the district court made in this case against the model
inquiry laid out in the federal benchbook. Other courts of
appeal have adopted this Miranda-style prophylactic ap-
proach, see, e.g., United States v. McDowell, 814 F.2d 245,
249-50 (6th Cir. 1987); we have not, United States v. Moya-
Gomez, 860 F.2d 706, 732-33 & n.25 (7th Cir. 1988), and we
reaffirm that position here. Although we have observed that
a judge who wishes to insulate his or her ruling from an in-
evitable appeal—whether that decision is to honor the pro
se request or deny it—would be prudent to conduct a
thorough and formal inquiry into the defendant’s under-
standing of the court’s warnings, our attention ultimately
is directed not at what was said or not said to the defendant
but whether that defendant in fact understood the risks and
made a knowing and intelligent waiver. Id.; see also United
States v. Hill, 252 F.3d 919, 928 (7th Cir. 2001) (“[T]he
question is not whether the district judge used a check-off
list but whether the defendant understood his options.”).
Directing our inquiry to the totality of circumstances
surrounding Egwaoje’s purported waiver, we conclude it
was made knowingly and intelligently. First, there is no
question that the court satisfied its obligation to warn
Egwaoje of the dangers of self-representation. The court
told him it was a foolish act that was likely to result in
significant errors at trial—errors that would be com-
pounded by his failure properly to preserve the record for
appeal. And there is nothing in the record that suggests
that Egwaoje was incapable of understanding these re-
peated warnings.
Egwaoje’s background and experience supports a finding
of waiver. He was competent to stand trial. He graduated
high school and attended two years of college. Moreover, for
a time he successfully constructed and implemented a
credit-card scheme that defrauded the target banks out of
nearly $39,000. All these facts suggest that Egwaoje pos-
No. 02-2868 11
sessed normal intelligence and was capable of making in-
formed—albeit unwise—decisions.
Egwaoje was no stranger to the criminal justice system
either. His presentence investigation report outlines an
extensive history of arrests and convictions for fraudulent
schemes, which weighs in favor of finding a sufficient
waiver. See Moya-Gomez, 860 F.2d at 736; Hill, 252 F.3d at
928. Egwaoje points out that this was his first trial and his
first federal case. But a defendant’s criminal history mili-
tates in favor of waiver not only because we would expect
that a criminally accomplished accused would possess some
familiarity with courtroom procedures; it also bears upon
the defendant’s understanding of the risks involved and the
nature of the charges brought against him. The fact that
Egwaoje pleaded guilty to and served time for theft and for-
gery charges resulting from prior false-identity and check-
kiting schemes suggests that he was in a position to ap-
preciate the seriousness of the charges brought against him
in this case. And that appreciation for the danger of his sit-
uation militates in favor of a knowing and intelligent
waiver.
The strongest evidence supporting a finding of waiver,
however, is that which suggests that Egwaoje was deliber-
ately manipulating the system in an attempt to create an
appealable issue. In ruling on his post-conviction motion for
a new trial, the district court found as a matter of fact that
Egwaoje engaged in a pattern of obfuscation and obstruc-
tionism in his pretrial dealings with the court by repeatedly
demanding a speedy trial and then requesting a continu-
ance, by routinely dismissing his attorneys for no good rea-
son, and by accusing—without basis—the district court and
the prosecutor of bias. It further found that this conduct
was Egwaoje’s only practical defense to charges that were
so well supported by the evidence as to be indefensible on
their merits. These findings, entitled to deference on ap-
12 No. 02-2868
peal, support a conclusion that Egwaoje knew full well what
he was doing when he asked to proceed pro se. See Sandles,
23 F.3d at 1129 (“[E]vidence of manipulation or intentional
delay on the part of the defendant militates in favor of a
knowing and intelligent waiver.”); see also United States v.
Irorere, 228 F.3d 816, 826 (7th Cir. 2000) (“[A] defendant
may waive his right to counsel through his own contuma-
cious conduct.”); United States v. Harris, 2 F.3d 1452, 1455
(7th Cir. 1993) (finding that defendant waived right to
counsel by firing fourth appointed attorney on the morning
of trial when he was on notice that his fourth attorney
would be the last the court would appoint for him); United
States v. Fazzini, 871 F.2d 635, 642 (7th Cir. 1989) (finding
implicit waiver after four court-appointed attorneys had
been dismissed by the defendant or excused by the court).
Given that we have found a defendant’s behavior to evi-
dence a knowing and intelligent choice in cases when the
defendant never clearly stated that he intended to waive
the right, see, e.g., Fazzini, 871 F.2d at 642, we surely are
warranted in looking to Egwaoje’s conduct to interpret the
genuineness of his express request to proceed pro se. Doing
so, we concur with the district court that Egwaoje fully un-
derstood the risk of going to trial without counsel.
Egwaoje’s fallback position—that the district court erred
in not concluding that he lacked the ability to conduct his
trial effectively and thereby preclude him from the at-
tempt—is meritless. In determining the intelligence and
willfulness of a purported waiver, we distinguish between
an individual’s competency to waive representation (which
is a relevant inquiry, as discussed above) and his compe-
tency to conduct it (which is not). See Godinez v. Moran,
509 U.S. 389, 399 (1993) (“[T]he competence that is re-
quired of a defendant seeking to waive his right to counsel
is the competence to waive the right, not the competence to
represent himself.”). That is, we take precaution to ensure
that a defendant who teeters on the precipice of self-rep-
No. 02-2868 13
resentation is aware that he risks falling into oblivion; we
do not contemplate whether he can survive the fall.
In sum, we conclude that Egwaoje made a knowing and
intelligent waiver of his right to counsel when he elected to
represent himself at trial.
II. Right to a Fair Trial
Knowing that the Supreme Court has already foreclosed
a defendant who elects to represent himself from pursuing
an ineffective-assistance claim on appeal, see Faretta, 422
U.S. at 834 n.46 (“[W]hatever else may or may not be open
to him on appeal, a defendant who elects to represent him-
self cannot thereafter complain that the quality of his own
defense amounted to a denial of ‘effective assistance of
counsel.’”), Egwaoje recasts what is essentially the same ar-
gument in the mold of a denial of his due process right to a
fair trial, arguing that a readily apparent deficiency in per-
formance at trial offends not only the defendant’s rights but
also undermines public confidence in the integrity of
judicial proceedings.
Unfortunately for Egwaoje, we’ve already considered—
and rejected—his argument. See Moya-Gomez, 860 F.2d at741 (citing with approval and following the reasoning of
United States v. McDowell, 814 F.2d 245, 251 (6th Cir.
1987), in which the Sixth Circuit rejected a fair-trial claim
brought by a criminal defendant who had represented him-
self at trial). And if we were at all inclined to reconsider the
issue, this case would not provide us with an appropriate
opportunity. The errors cited by Egwaoje before this court
do not amount to a constitutional violation. For example,
Egwaoje cites his failure to make evidentiary objections as
evidence of deficient performance; yet, he doesn’t identify a
single piece of evidence that was improperly admitted.
Egwaoje’s other errors—interrupting the court and wit-
14 No. 02-2868
nesses, asking irrelevant questions—are equally trivial.
Nothing he said or did during the course of the proceedings
was serious enough to justify a mistrial, cf. Harris, 2 F.3d
at 1454, 1456 (finding no abuse of discretion in denying a
motion for mistrial when defendant, in the presence of the
jury, had climbed onto counsel’s table to exclaim “Kill me!”
and “Shoot me!”, attempted to flee the courtroom, and made
unsubstantiated claims that he was the victim of racial dis-
crimination), and to the extent that his behavior drew the
court to admonish him, he was warned repeatedly of that
possibility.
Most damning to his fair-trial claim, however, would be
Egwaoje’s inability to show that the jury failed to determine
his guilt fairly and reliably. Cf. United States v. Farhad,
190 F.3d 1097, 1105 (9th Cir. 1999) (defining a “fair trial”
as a “proceeding that is designed to maximize the likelihood
of a fair and reliable determination of guilt or innocence”).
Given the overwhelming evidence implicating his guilt—
which included the eye-witness testimony of the bank teller,
the surveillance photos placing him at the scene, the
arresting officer’s testimony, and the credit cards and fake
IDs recovered from Egwaoje upon his arrest—we fail to see
how Egwaoje could argue that the jury’s verdict was un-
reliable.
III. Denial of Continuance
Egwaoje’s remaining claims—that the district court
abused its discretion in denying his request for a continu-
ance and that the district court failed to consider his depar-
ture motion—are also without merit and may be disposed
of with minimal discussion.
A district court’s exercise of its discretion in scheduling
trials and granting or denying continuances is “almost
standardless.” Moya-Gomez, 860 F.2d at 742 (quoting
No. 02-2868 15
United States v. Rodgers, 755 F.2d 533, 539 (7th Cir. 1985));
see also United States v. Davis, 604 F.2d 474, 480 (7th Cir.
1979) (denial of continuances are “virtually unreviewable”);
cf. Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (“[B]road dis-
cretion must be granted trial courts on matters of continu-
ances; only an unreasoning and arbitrary insistence upon
expeditiousness in the face of a justifiable request for delay
violates the right to the assistance of counsel.” (quotation
omitted)).
In light of (1) the district court’s finding that Egwaoje
knew his trial was scheduled to begin the morning of April
2; (2) Egwaoje’s repeated requests that he be given a speedy
trial; (3) the fact that, despite those requests, the trial date
had already been rescheduled four times in large part be-
cause Egwaoje chose to fire his attorneys; (4) the unlikeli-
hood that any prejudice resulted from the denial given the
strength of the government’s case and the lack of any viable
defense; (5) the relative simplicity of the charges brought
against him; (6) the fact that before trial Egwaoje chose not
to avail himself of the opportunity to access his discovery
materials through his attorneys; and (7) the inconvenience
and burden to the court, the government, and the witnesses
to reschedule a trial that was set to begin that day, it would
be beyond reason to find that the district court abused its
discretion in denying Egwaoje’s request. See United States
v. Farr, 297 F.3d 651, 657 (7th Cir. 2002) (“[W]e refuse to
even consider, much less adopt, a rule that might suggest
that a trial court should tolerate a calculating and mischie-
vous defendant and grant indefinite continuances to a
defendant who refuses to cooperate with his attorney.”);
Avery, 208 F.3d at 603 (“[T]he situation about which [the
defendant] now complains was brought about entirely by
his own actions. His decision to dismiss his lawyer on the
eve of trial and proceed pro se was a decision he made at
his own peril.”).
16 No. 02-2868
IV. Downward Departure Motion
Relying upon United States v. Farouil, 124 F.3d 838, 847
(7th Cir. 1997), Egwaoje filed a motion for downward
departure at sentencing, arguing that his deportable alien
status would result in an unusual or exceptional hardship
in his conditions of confinement. The district court in a
summary ruling stated that it “considered and denied”
Egwaoje’s motion. On appeal, Egwaoje argues that we can-
not tell from this ruling whether the district court recog-
nized it had the authority to depart, but declined in its dis-
cretion to do so, or whether it thought it lacked the author-
ity to depart at all. Egwaoje argues that we must vacate his
sentence and remand to the district court for more specific
findings on his motion.
This court has often stated that “discretionary decisions
not to depart are not reviewable.” United States v. Chavez-
Chavez, 213 F.3d 420, 421 (7th Cir. 2000) (citation omitted).
As Egwaoje’s motion points out, we stated in Farouil that
in an appropriate case, a defendant may qualify for a depar-
ture based on his status as a deportable alien. 124 F.3d at
847. Such departures are reasonable because a deportable
alien’s conditions of imprisonment may be more severe, see
United States v. Guzman, 236 F.3d 830, 834 (7th Cir. 2001),
and because an alien must face the harsh consequences of
deportation, see United States v. Bautista, 258 F.3d 602,
607 (7th Cir. 2002). We presume that district court judges
know and understand the law, and we will not disturb that
presumption by mere inference. See United States v.
Kezerle, 99 F.3d 867, 870 (7th Cir. 1996).
Here, the district court’s ruling may have been brief, but
it was clear. The court stated that it “considered” Egwaoje’s
motion before denying it. We will take that language at face
value to mean that the court recognized the Farouil-
Guzman-Bautista line of cases granting it authority to de-
part, but that in considering Egwaoje’s specific request, it
declined to exercise its discretion to do so. Hence, we lack
No. 02-2868 17
the jurisdiction to consider the exercise of this discretion on
appeal.
CONCLUSION
For the foregoing reasons, we AFFIRM both Egwaoje’s
conviction and sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-03