United States v. Maira Bernice Guzman , 236 F.3d 830 ( 2001 )

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 socioeconomic 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. § 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. § 5H.7, and their disapproval of a downward departure based on family relationship. § 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.1994), 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.Cir.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. Koon v. United States, 518 U.S. 81, 96, 116 S.Ct. 2035, 135 L.Ed.2d 392 (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 resen-tencing in conformity with this opinion.

REVERSED And Remanded.