UNITED STATES of America, Plaintiff-Appellee, v. Michael Devon LIPMAN, Defendant-AppellantUNITED STATES of America, Plaintiff-Appellee, v. Michael Devon LIPMAN, Defendant-Appellant
Miсhael Devon Lipman (“Lipman”) appeals his twenty-one month sentence imposed pursuant to Sentencing Guideline (U.S.S.G.) § 2L1.2 for illegal reentry after deportation for a felony conviction. Lipman contends that the district court failed to recognize its authority to depart from the Sentenсing Guidelines on the basis of Lipman’s “cultural assimilation” into American society and that the court erred in denying him a downward departure ,on that basis. We hold that “cultural assimilation” is a permissible ground for departure under the Sentencing Guidelines, that the district court properly recognized its authority to consider evidence of “cultural assimilation,” and that the court exercised its nonreviewable discretion to deny departure oh that basis in this case. We therefore affirm.
BACKGROUND
On July 22, 1994, Lipman lost his permanent resident Status and was deported to Jamaica pursuant to 8 U.S.C. § 1251(a)(2) because he had been convicted of numerous felonies including possession of a weapon, attempted possession of marijuana, unlawful imprisonment, two counts of sexual abuse, and attempted robbery. On August 2, 1996, Lipman reentered the United States for the first time since his deportation. His port of entry was Miami. Ten days later, he was arrested in Los Angeles for possession and transportation for sale of approximately thirty-nine pounds of marijuana.
On. September 10, 1996, a federal grand jury indicted Lipman on one count of illegal reentry after being deported for a felony conviction, in violation оf 8 U.S.C. § 1326(a) and § 1326(b)(1). Lipman pled guilty. At sentencing, Lipman requested a downward departure pursuant to U.S.S.G. § 5K2.0 on the ground of “cultural assimilation.” Lip-man also requested a downward departure on grounds of “lesser harms” (U.S.S.G. § 5K2.11), “extraordinary family circumstances” (U.S.S.G. § ■ 5H1.6), and a combina
In support of his request for a downward departure based on his cultural assimilation into American society, Lipman contends that he is not the typical illegal reentry defendant because he is a “de facto American,” with “significant ties” to the United States. Lip-man points out that although he is a Jamaican citizen, he was brought to this country by his mоther at the age of twelve and, until his deportation, he had legally resided here for an uninterrupted period of twenty-three years. Lipman attended New York public schools through high school. He married a U.S. citizen, with whom he raised five U.S. citizen children. He also fathered two other American-born children. Lipman’s entire family, including his mother, three siblings, five children and wife, reside in the United States as American citizens.
Lipman contends that his cultural assimilation mitigates his culpability for the crime of illegal reentry because his reentry was “motivated by his cultural, emotional and psychological ties to this country ... developed because of a parental decision to emigrate the defendant as a child.” In particular, Lipman claims that his reentry was motivated by his desire to visit his disabled U.S. citizen daughter after he learned that she had been sexually assaulted, even though his trip took him to Los Angeles instead of to his daughter’s home in New York.
Lipman further contends that he is unlike the typical reentry defendant because, despite his arrest on drug-trafficking charges, his return was motivated by familial concern rather than economic incentives. According to Lipman, the typical reentry defendant lacks cultural or family ties to the United States, is motivated only by economic needs, and “come[s] to this country, commit[s] crimes, go[es] to prison, [and then] get[s] deported and returnfs] to repeat the cycle several times.”
Moreover, Lipman claims that deportation would cause him greater hardship than it would the typical reentry defendant because the United States is effectively his homeland. According to Lipman, “[i]t is one thing to be returned to one’s native land where roots, family, and a familiar culture greet one’s arrival. It is quite another to be banished from the only real homе country one has known — the country from which sprouted education, marriage and children.”
The district court denied Lipman’s request for downward departure and sentenced him to twenty-one months in prison. Lipman timely appeals his sentence on the sole issue of whether he is entitled to a downward departure based on his “cultural assimilation” into American society. He contends that the district court faded to recognize its authority to depart downward from the Sentencing Guidelines on this basis and erred in denying his request to do so. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
STANDARD OF REVIEW
This court has jurisdiction to review the district court’s determination of whether it had authority to depart downward under the Sentencing Guidelines.
See United States v. Mendoza,
This court lacks jurisdiction to review a district court’s discretionary denial of a downward departure.
See United States v. Webster,
I.
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.” 18 U.S.C.
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.’”
Mendoza,
Because the Sentencing Commission has never addressed or proscribed “cultural assimilation” per se as a factor that may justify departure, we hold that a sentencing court has authority under U.S.S.G. § 5K2.0 to consider evidеnce of cultural assimilation.
II.
Because cultural assimilation is “a factor [that] is unmentioned in the Guidelines,” a sentencing court can only depart on this basis after considering “the structure and theory of both relevant individual guidelines and the Guidelines taken as a whole.”
Sablan,
Moreover, the factor of cultural assimilation is akin to the factor of “family and community ties” discussed under U.S.S.G. § 5H1.6. Thus, to the extent that cultural assimilation denotes family and community ties, we hold that the district court has the authority to depart on this basis in extraordinary circumstances. Under U.S.S.G. § 5H1.6, “[family ties and resрonsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6. But under U.S.S.G § 5K2.0, such circumstances may be relevant if “present to an unusual degree” such that the case is distinguished “from the ‘heartland’ eases ... in a way that is important to the statutory purposes of sentencing.” U.S.S.G. § 5K2.0;
see also United States v. Mondello,
The government attempts to equate cultural assimilation with the prohibited ground of the threat of future dеportation. We have consistently held that a sentencing court cannot downwardly depart based on the fact that a defendant faces future deportation.
See United States v. Alvarez-Cardenas,
But cultural assimilation is distinguishable from the threat of future deportation because a defеndant’s cultural assimilation may speak to his offense and to his character. Recognizing cultural assimilation as a factor that may justify departure therefore would not result in the arbitrary dividing line between all aliens and all citizens that we rejected in Alvarez-Cardenas. For example, cultural assimilation may be rеlevant to sentencing under U.S.S.G. § 2L1.2 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. Cultural assimilation may also be relevant to the character of a defendant sentenced under U.S.S.G. § 2L1.2 insofar as his culpability might be lessened if his motives were familial or cultural rather than economic. Thus, unlike the general threat of deportation, cultural assimilation is a fact-specific ground for departure that may speak to аn individual defendant’s offense, his conduct and his character, and not just to possible future events unrelated to the defendant’s individual circumstances.
In sum, we find that a sentencing court may depart on the basis of cultural assimilation if it finds that the defendant’s circumstances remove his ease from the heаrtland of eases governed by the relevant individual guidelines and the Guidelines as a whole.
III.
Lipman contends that the district court erroneously concluded as a matter of law that it lacked authority to depart downward on the basis of cultural assimilation. We disagree. Lipman seizes upon onе statement made by the district court: “I cannot find that the tie—the ... cultural assimilation into U.S. society ... is a ground for a downward departure.” Read in context, however, this statement does not support Lipman’s contention that the district court erred.
A district court “need not say affirmatively that it had discretiоn to depart.”
Webster,
The court further determined that Lip-man’s long-term residency “doesn’t amount to a circumstance ... that would justify a downward departure” only after the court had assessed the specific facts of Lipman’s case. The court indicated that the only way in which Lipman’s case was “unusual” and possibly “atypical” was with respect to “the number of family members who live here in the United States.” Even in that regard, the court determined that Lipman’s family ties were not so unusual as to justify a downward departure in light of the nature and number of offenses that caused Lipman to lose his residency status in the first place. The district court concluded by stating that “given all of the arguments” that Lipmаn raised, it could “find no reason whatsoever to depart downwards.”
We addressed a similar oral decision by a district court in
Webster.
In
Webster,
the district court stated that it had “‘searched the guidelines, and ... frankly, [did] not see any grounds for departure.’ ”
Webster,
108
Thus, the district court recognized its authority to depart based on cultural assimilation and properly considered the factual support for Lipman’s argument before exercising its discretion to deny departure. “We lack jurisdiction to review a district court’s discretionary refusal to depart downward from the Guidelines.”
See Webster,
CONCLUSION
Whether cultural assimilation is regarded as a factor unmentioned in the Guidelines or as a variation of the family and community ties factor discussed under U.S.S.G. § 5H1.6, we conclude that the district court had authority under U.S.S.G. § 5K2.0 and § 1B1.4 to consider Lipman’s evidence of cultural аssimilation. We also conclude that the district court had the discretionary authority to depart on this basis under U.S.S.G. § 5K2.0 if it found that Lipman’s cultural assimilation distinguished his case from U.S.S.G. § 2L1.2’s heartland.
The language of the district court’s sentencing decision shows that the court properly recognized its authority to considеr evidence of cultural assimilation. The district court concluded as a factual matter, however, that the evidence of Lipman’s cultural assimilation was insufficient to justify a downward departure. Because the denial of departure was a proper exercise of the district court’s discretion, we lack jurisdiction to review its decision.
AFFIRMED.