United States v. Ernesto Rivas-Gonzalez , 384 F.3d 1034 ( 2004 )

ORDER

The Opinion filed April 22, 2004, and found at 365 F.3d 806, is hereby amended as follows:

(1) We delete the last paragraph reading:

Having concluded that the district court erred when it departed downward based on cultural assimilation, we do not reach or address the district court’s second ground for departure, based on family ties, and we express no view on whether and to what extent the departure might properly have been made on that ground. We do not address this issue because we cannot divine whether the district court would have departed and how it would have fashioned Rivas’s reduced sentence absent the district court’s erroneous reliance on cultural assimilation. It is for the district court in the first instance to decide whether and to what extent Rivas was entitled to a downward departure based solely on family ties. We REVERSE and REMAND to allow the district court to re-sentence Rivas, if and when it may become appropriate,⁴ consistent with this' opinion.

(2) We add the following paragraph in its place at the end of the Opinion:

Having concluded that the district court erred when it departed downward on the ground of cultural assimilation, we do not reach or address the district court’s second ground for departure, based on family ties. The record is not sufficiently developed for us to conclude that the district court’s departure could be sustained on that ground, and we express no view in that regard. On the record as it now stands, however, we conclude that Rivas’s reduced sentence is “too low” within the meaning of 18 U.S.C. § 3742(f)(2)(B), and we accordingly REVERSE and REMAND to allow the district court to determine whether and to what extent Rivas is entitled to a downward departure based solely on family ties, and to re-sentence Rivas, if and when it may become appropriate,⁴ consistent with this opinion.

The text of footnote 4 states, as prior footnote 4 stated, before this amendment, “We express no opinion about whether Rivas, who has been deported, may be re-sentenced in absentia.”

The parties previously have not filed any petition for rehearing or petition for rehearing en banc. A sua sponte en banc call was made by a judge on this Court, and a majority of active judges did not vote for en banc review. The parties may, within twenty-one days of the filing of this order, file a petition for rehearing or rehearing en banc solely with regard to the substantive amendment above.

IT IS SO ORDERED.

PREGERSON, Circuit Judge,

with whom Judges REINHARDT and THOMAS join, and with whom Judge WARDLAW

also joins but for the reasons stated in her separate concurrence, dissenting from the court’s denial of rehearing en banc:¹

I respectfully dissent from the order denying rehearing en banc. The panel’s decision in this case conflicts with the Sentencing Guidelines, the Supreme Court’s pronouncements in Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), and the law of our circuit.

This case is about whether the district court had discretion to consider the cultural ties that Defendant Ernesto Rivas-Gonzalez (“Rivas”) developed after his illegal reentry and which might mitigate his continued illegal presence in this country. We had already answered that question in United States v. Lipman, 133 F.3d 726 (9th Cir.1998), when we explained that a § 5K2.0 downward departure in an 8 U.S.C. § 1326(a) illegal reentry case may be appropriate “if a district court finds that a defendant’s unusual cultural ties to the United States — rather than ordinary economic incentives — provided the motivation for the defendant’s illegal reentry or continued presence in the United States.” Id. at 731 (emphasis added). Of course, the panel in this case thought otherwise. The panel opinion expresses what appears to be disdain for Lipman’s recognition that a cultural assimilation downward departure may be appropriate in such a case, calling it “unpersuasive dictum.” United States v. Rivas-Gonzalez, 365 F.3d 806, 812 (9th Cir.2004).

Whether the panel is correct that Lip-man’s recognition of the availability of post-illegal reentry cultural assimilation was “dictum,” labeling it as such cannot mask the panel’s error of law. Even if one accepts that the panel in this case was not bound by Lipman, the restrictions that the panel imposes on a district court’s discretion to depart downward in illegal reentry cases are unwarranted, unwise, and most importantly, contrary to binding precedent.

“Sentencing is a case-by-case matter.” United States v. Defterios, 343 F.3d 1020, 1023 (9th Cir.2003) (citations omitted). “Under U.S.S.G. § 5K2.0 and its implementing statute, a departure is appropriate when ‘there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.’ ” Lipman, 133 F.3d at 729-30 (citing 18 U.S.C. § 3553(b)).

In determining whether a departure is warranted under U.S.S.G. § 5K2.0, a sentencing court “may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law.” U.S.S.G. § 1B1.4. Except for those factors categorically proscribed by the Sentencing Commission as a basis for departure, e.g., race, sex, and national origin, the Guidelines “ ‘place essentially no limit on the number of potential factors that may warrant departure.’ ” [United States v.] Mendoza, 121 F.3d [510,] 513 [ (9th Cir.1997) ] (quoting Koon [v. United States], 518 U.S. [81, 106, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)]). If a factor has not been categorically excluded by the Sentencing Commission, a sentencing court has no authority to decide to exclude it as a matter of law.

Id. at 730.

The panel’s holding that a district court may never depart downwardly on the basis of an illegal reentrant’s cultural assimilation — however strong — that takes place after an individual’s illegal reentry, see Rivas-Gonzalez, 365 F.3d at 812, stands in stark contrast to the Supreme Court’s binding statements in Koon and our court’s binding statements in Koon’s progeny. Under those precedents, we may not create a rule that prohibits a district court from ever considering a request for a certain downward departure, such as the § 5K2.0 cultural assimilation departure at issue in this case, on a categorical basis. Rather, our job requires us to trust that a district court will properly evaluate a particular defendant’s request for a downward departure and determine whether the evidence he or she presents makes the case “unusual enough for it to fall outside the heartland of cases in the [applicable] Guideline.” Koon, 518 U.S. at 98, 116 S.Ct. 2035. Of course, we are free to reverse that case-specific determination on appeal, see 18 U.S.C. § 3742(e), but our task, like the district court’s, is to evaluate the case on a case-by-case basis, see, e.g., Defterios, 343 F.3d at 1023.

Nor is the panel correct that recognition of a downward departure on the basis of post-reentry cultural assimilation rewards the reentrant for “enjoy[ing] an extended illegal sojourn — which resulted in the corresponding creation of cultural and community bonds.” Rivas-Gonzalez, 365 F.3d at 812. While the conventional wisdom is that unauthorized immigrants will always remain in this country once they have managed to get here, that is not in fact the ease. Estimates by the former INS show that during the 1990s, anywhere between 111,000 and 183,000 undocumented immigrants left the country voluntarily each year. Office of Policy and Planning, Immigration and Naturalization Service, Estimates of the Unauthorized Immigrant Population Residing in the United States: 1990-2000 at 10, available at http:// uscis.gov/graphics/shared/aboutus/statisties/Ill_Report_1211.pdf. By contrast, the number of individuals removed by the INS during that period varied from 26,000 to 63,000 per year. See id.

Perhaps even more troubling is the panel’s holding that a district court may never consider even pre-reentry cultural assimilation unless the defendant was “brought to the United States as [a] child[ ].” Rivas-Gonzalez, 365 F.3d at 811. I have no doubt that the most compelling cases for a downward departure will involve a defendant who came to the United States as a child, but I see no reason for — and the Guidelines, the Supreme Court, and the law of this circuit prohibit — a per se rule that only illegal reentrants “brought to the United States as children,” see id., are eligible for a cultural assimilation downward departure. Consider the case of an individual who came to the United States when she was twenty-one years old, spent over twenty-five years in this country, had children and grandchildren here, and was then ordered deported. These facts are not entirely hypothetical. In Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800 (9th Cir.2004), the petitioner illegally arrived in this country in 1972 at age twenty-one and eventually become a permanent resident. In 1998, the BIA ordered her deported because of her attempt to smuggle a cousin into the country. Under Rivas-Gonzalez, if that person were to return to the country illegally and then be convicted of violating 8 U.S.C. § 1326, the district court could not even consider whether a downward departure would be appropriate on the basis of cultural assimilation.

In an exceptional case, a district court should be allowed to find that a § 1326(a) defendant would not have stayed in this country but for his or her unusual cultural ties. In such a case, a district court should have the discretion to consider a § 5K2.0 downward departure. That is precisely what the district court did in this case when it departed downwardly on Rivas’ sentence. The district court found that the evidence of Rivas’ “character and conduct,” U.S.S.G. § 1B1.4, established that his cultural ties motivated his continued presence in the United States. The district court’s comments at sentencing bear repeating because they best illustrate the injustice, I respectfully submit, committed by the panel to Rivas and other similarly-situated reentrants. “The district court said that Rivas’s case was ‘the most extraordinary of any of these illegal alien cases that I have seen in seven years on the bench.’ ” Rivas-Gonzalez, 365 F.3d at 808.

[T]he district court added, “it seems to me that this is the kind of person that we want to have living in this country. He’s a good citizen. Even though he isn’t a citizen, he contributes far more to the community. And his connections with that and his cultural assimilation into the community is far greater than many of the people who live here simply by birth.”

Id. at 809.

Under the panel’s erroneous reading of the Guidelines, of the Supreme Court’s decision in Koon, and of the law of our circuit, a district court is categorically forbidden from ever considering at sentencing any cultural assimilation that developed post-reentry or even any pre-reentry cultural assimilation developed by a reen-trant who was not “brought to the United States as [a] child[ ].” Rivas-Gonzalez, 365 F.3d at 811.

Because the panel’s decision is contrary to binding law, and because it unnecessarily restricts a district court’s sentencing discretion, I dissent.²

1 . Judge B. FLETCHER, who cannot qualify as a dissenter to the outcome, expresses her agreement with Judge Pregerson.

2 . Because this is a sentencing case, it may be affected by the Supreme Court’s forthcoming decisions in United States v. Booker, 375 F.3d 508 (7th Cir.2004), cert. granted, - U.S. -, 125 S.Ct. 11, - L.Ed.2d -, 2004 WL 1713654 (Aug. 2, 2004), and Fanfan v. United States, 2004 WL 1723114 (D.Me. June 28, 2004), cert. granted, — U.S. -, 125 S.Ct. 12, - L.Ed.2d -, 2004 WL 1713655 (Aug. 2, 2004). The second question presented in both of these appeals involves whether "the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.” Pet. for Cert, at *1, Booker, available at 2004 WL 1638204; Pet. for Cert, at *1, Fanfan, available at 2004 WL 1638205. Should the Court answer this question in the affirmative — that is, rule that the Sentencing Guidelines are unconstitutional as a whole — sentencing would be conducted as it was "before the guidelines were promulgated.” Booker, 375 F.3d at 515 ("If the guidelines fall, the judge is free as he was before the guidelines were promulgated to fix any sentence within the statutory range.”). Should our mandate be stayed in this case, or should Rivas seek a writ of certiorari, the panel's decision may very-well become moot because the district court’s sentence fell within the statutory range. See Koon, 518 U.S. at 96, 116 S.Ct. 2035 ("Before the Guidelines system, a federal criminal sentence within statutory limits was, for all practical purposes, not reviewable on appeal.”).

4 . We express no opinion about whether Rivas, who has been deported, may be re-sentenced in absentia.