United States v. Kevin Decora, Also Known as Hoch Decora , 177 F.3d 676 ( 1999 )

FENNER, District Judge,

dissenting.

I believe the district court erred by taking into consideration the defendant’s racial background when imposing sentence. In United States v. Prestemon, 929 F.2d 1275 (8th Cir.1991), this Court noted:

[I]n establishing the Sentencing Guidelines, Congress expressly directed the Sentencing Commission to “assure that the guidelines and policy statements are entirely neutral as to the race, sex, national origin, creed, and socioeconomic status of offenders.” 28 U.S.C. § 994(d). This Congressional directive is clearly set forth in Guidelines § 5H1.10. For this reason, appellee’s race or racial background cannot be a basis for departure. See United States v. Diaz-Villafane, 874 F.2d at 49 n. 5 (guidelines bar departures based on enumerated factors such as race, sex and national origin); cf. United States v. Natal-Rivera, 879 F.2d 391, 393 (8th Cir.1989) (guidelines do not violate due process because they do not allow consideration of cultural background when imposing sentence).

As reflected in the majority opinion, the sentencing judge in the present case made it clear that he was basing his decision to depart from the sentencing guidelines on his personal knowledge of the general adversities one faces living on a reservation. By considering, in a general sense, that a person was raised or lives on a reservation, raised or lives in the ghetto, or otherwise from a particular socioeconomic status, is to take into consideration that which is specifically prohibited by Congress. I would remand for the district court to resentence defendant without rebanee on a generalization of adversities of life on the reservation.