United States v. Jose Baltazar Rodriguez-Lopez
198 F.3d 773
9th Cir.
1999
Check Treatment

UNITED STATES of America, Plaintiff-Appellee, v. Jose Baltazar RODRIGUEZ-LOPEZ, Defendant-Appellant.

No. 98-50674.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 1999. Filed Dec. 20, 1999

201 F.3d 446 | 1999 WL 1215112

final basis for rejecting the OCR‘s inter-pretation of Title IX was therefore errone-ous.

IV.

This past summer, 90,185 enthusiastic fans crowded into Pasadena‘s historic Rose Bowl for the finals of the Women‘s World Cup soccer match. An estimated 40 mil-lion television viewers also tuned in to watch a thrilling battle between the Amer-ican and Chinese teams. The match ended when American defender Brandi Chastain fired the ball past Chinese goalkeeper Gao Hong, breaking a 4-4 shootout tie. See

. The vic-tory sparked a national celebration and a realization by many that women‘s sports could be just as exciting, competitive, and lucrative as men‘s sports. And the victori-ous athletes understood as well as anyone the connection between a 27-year-old stat-ute and tangible progress in women‘s ath-letics. See
(quoting Chastain‘s statement that “all of this is because of Title IX“);
(quoting defender Kate Sobrero‘s state-ment that “we‘re all Title IX babies, and this shows it‘s working“). Title IX has enhanced, and will continue to enhance, women‘s opportunities to enjoy the thrill of victory, the agony of defeat, and the many tangible benefits that flow from just being given a chance to participate in intercolle-giate athletics. Today we join our sister circuits in holding that Title IX does not bar universities from taking steps to en-sure that women are approximately as well represented in sports programs as they are in student bodies. We REVERSE, and VACATE the preliminary injunction.

nities they will allocate to each sex. As a result, determining whether discrimination exists in athletic programs requires gender-conscious, group-wide comparisons. Be-cause men are not “qualified” for women‘s teams (and vice versa), athletics require a gender conscious allocation of opportunities in the first instance. The paradigm that has motivated the Supreme Court‘s more recent reverse-discrimination jurisprudence simply does not fit the case at bar. See

(“[W]hile Adarand does make new law, the law it makes is wholly irrelevant to the disposition of this appeal....“).

Roger W. Haines, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Heather M. Angove, Assistant Federal Public Defender, San Diego, California, for the defendant-appellant.

Before: D. W. NELSON, REINHARDT and TROTT, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge TROTT.

REINHARDT, Circuit Judge:

Jose Rodriguez-Lopez was taken into custody by federal immigration agents on February 19, 1998. After he admitted that he had no legal right to be present in the United States, it was discovered that he had three prior criminal convictions and had previously been deported on at least four occasions. On April 9, 1998, Rodri-guez-Lopez was charged with violating 8 U.S.C. § 1326 by being an alien present in the United States after deportation, and he pled guilty to this charge on May 11, 1998. There was no plea agreement.

On September 14, 1998, the district court sentenced Rodriguez-Lopez based on an offense level of 8 under U.S.S.G. § 2L1.2(a), an increase of 4 points under U.S.S.G. § 2L1.2(b)(1)(B) (because he had been deported after being convicted of ve-hicle theft, a felony), and a downward ad-justment of 2 levels for acceptance of re-sponsibility. The district court denied two requests for downward departures: one for overrepresentation of his criminal his-tory category, which is not in question here, and the other based on his offer to stipulate to deportation.1 During the sen-tencing hearing, Rodriguez-Lopez argued that the stipulation would provide a specif-ic benefit to the government by allowing it to conserve valuable resources. The gov-ernment in turn opposed his request for a downward departure based on that offer because Rodriguez-Lopez had not pled guilty “early on” pursuant to a “fast track” plea agreement that it offered to some defendants. The court, in response, con-cluded that it was “forced to deny the deportation departure ... for the reasons stated by the Government.” Consequent-ly, Rodriguez-Lopez was sentenced to the low end of the guideline range, under an adjusted offense level of 10 and criminal history category V, to 21 months in prison and three years of supervised release. This appeal followed.

Whether a particular factor is a permissible basis for departure is a ques-tion of law to be reviewed de novo. See

. Although a discretion-ary decision not to depart from the Sen-tencing Guidelines is not reviewable on appeal, a denial based on the district court‘s belief that it lacks legal authority to depart is reviewable under a de novo stan-dard. See
.

In this case, both parties agree that the district court‘s ruling rested on its belief that it lacked the legal authority to depart downward based on the offer to stipulate to deportation where the govern-ment did not consent to the departure through a fast-track plea agreement. This court has jurisdiction to review the district court‘s conclusion that it lacked the authority to depart on that basis. Because

we hold that, as a matter of law, the district court‘s conclusion was erroneous, we reverse and remand.

In

, the Supreme Court held that factors that are not mentioned in the U.S. Sentencing Guidelines may be used as grounds for downward departures when they “take the case out of the Guideline‘s heartland.”
. We recently issued an en banc decision inter-preting
as precluding the creation of additional categories of factors that are deemed inappropriate as a basis for down-ward departure unless the Sentencing Commission expressly prohibits consider-ation of those factors.2 See
(quoting
).

Whether an unmentioned factor provides a basis for downward departure cannot be decided as a general matter, but instead must be determined on the basis of the facts and circumstances of the particu-lar case.

The Government seeks to avoid the fac-tual nature of the departure inquiry by describing it as a higher level of general-ity linked closely to questions of law. The relevant question, however, is not, as the Government says, “whether a particular factor is within the ‘heartland’ ” as a general proposition, but whether the particular factor is within the heartland given all the facts of the case.

(citation omitted). We have expressly held that courts should not decide as a general proposition whether a factor is an appro-priate basis for departure; rather, the sen-tencing court must determine on a case-specific basis whether a factor provides a basis for departure in light of all the cir-cumstances:

Whether or not a factor makes a case unusual is a determination particularly suited to the district court, “informed by its vantage point and day-to-day experi-ence in criminal sentencing.” ... The district court has an “institutional ad-vantage” in making this assessment, for it “see[s] so many more Guideline cases than we do....” In

, the Supreme Court specifically held that the determi-nation of whether a factor takes a case outside the heartland is not made “as a general proposition.” ... Rather, the sentencing court must consider whether the “particular factor is within the heart-land given all the facts of the case.”

(quoting
) (citations omitted).

The government‘s argument that the district court lacked discretion to grant a downward departure in this case runs contrary to

holding that courts cannot categorically preclude a particular basis for departure unless the Sentencing Commission expressly prohibit-ed consideration of that basis. See
. Both at trial and on appeal, the government argues that a stipulation to deportation should only be considered for departure only if the government has en-tered into a fast-track plea agreement with the defendant. On appeal, the government also argues that a court does not have discretion to “depart downward from the Sentencing Guidelines based on a defen-dant‘s stipulation to deportation, unless the

Government receives an articulable benefit not contemplated by the Sentencing Guide-lines.” The government further suggests that it would not receive such a benefit unless the defendant in fact had a “non-frivolous, colorable defense” to deporta-tion.

Both the defendant and the govern-ment agree that this court has not decided the question whether a downward depar-ture is permissible based on a defendant‘s stipulation to deportation when (1) the government fails to consent to such a de-parture and/or (2) the defendant lacks a colorable defense to deportation.3 With respect to the issue of governmental con-sent, we conclude that, although consent is relevant to a sentencing court‘s decision whether to depart from the guidelines, the absence of such consent does not consti-tute an absolute and categorical bar to departure. As to the second issue-namely, that whether a downward departure is permissible based on an articulable benefit to the government or a colorable, non-frivolous defense to deportation, we decline to reach it both because the government did not raise the issue before the sentenc-ing court, and because, as a result, no inquiry was made into whether Rodriguez-Lopez‘s stipulation in fact afforded any benefit to the government.4

Simply put, the law of this circuit clearly proscribes the categorical prohibi-tion of grounds for departure that are not expressly excluded from consideration by the Sentencing Commission. As a result, we must reject the government‘s argument that a district court may never consider granting a departure on the basis of an alien‘s stipulation to deportation unless the government has given its consent. To re-quire governmental consent in all such in-

stances runs contrary to both Ninth Cir-cuit precedent and the plain language of U.S.S.G. § 5K2.0, which affords the dis-trict court discretion to depart on the basis of factors not adequately taken into ac-count by the Sentencing Commission. To hold that government consent is a manda-tory condition in cases other than those in which government consent is explicitly re-quired by the Guidelines (as it is, for ex-ample, in departures for substantial assis-tance), not only runs afoul of

, but also of the Guidelines themselves, by impermissibly shifting the locus of discretionary decisionmaking from the district judge to the prosecution.5 Fi-nally, we note that in holding that govern-ment consent is not a mandatory condition in § 1326 departure cases, we reach the same decision as did the Second Circuit in
(downward depar-ture for a stipulated deportation permissi-ble in certain circumstances even over gov-ernment objections).

Because the absence of government con-sent does not preclude departures on the basis of a stipulated deportation in all in-stances, the district court should have ex-amined the facts and circumstances of Rodriguez-Lopez‘s case and determined whether, given those facts and circum-stances, his stipulation took the case out of the heartland. See

. On remand, the district court will have to examine that question and may, of course, consider the absence of government consent.

On this appeal, because it is not possible to determine that the district court‘s belief that it lacked discretion to depart “did not affect the district court‘s selection of the sentence imposed,”

(quoting
), we hold that the error was not harmless and remand for the sole purpose of allowing the district court to exercise its discretion with respect to the requested downward departure.

REVERSED and REMANDED.

TROTT, Circuit Judge, dissenting:

I respectfully dissent. In my judgment, willingness to accept deportation in the absence of a colorable, nonfrivolous de-fense to deportation is not outside the heartland. There is nothing atypical what-soever about the usual alien convicted un-der section 1326 not having a defense to deportation and being willing to be deport-ed, nothing. In this respect, I agree with the First and Third Circuits’ opinions in

, and
. Thus,
, which was wrongly decided, see
(Trott, J., dissenting), is irrele-vant.

This remand is not only based on faulty law, but is for no useful purpose because, based on his criminal history and numer-ous deportations, Rodriguez-Lopez clearly has no colorable defense.

Notes

1
Although Rodriguez-Lopez argued in his re-quest for downward departures that he should be granted a departure because of the administrative benefit provided by his stipula-tion, the government opposed his departure request solely on the ground that the stipula-tion was not part of a fast track plea agree-ment, and the district court found that it had no authority to consider the stipulation absent the prosecutor‘s consent. Although the gov-ernment contends on appeal that a stipulation to deportation is not a permissible basis for a downward departure from the Sentencing Guidelines absent a “non-frivolous, colorable defense to deportation,” it did not raise that issue before the sentencing court, and no in-quiry was made into whether Rodriguez-Lo-pez had any such defense.
2
The Sentencing Commission has made it clear that, with certain specific exceptions such as race, sex, national origin, it “does not intend to limit the kinds of factors, whether or not mentioned anywhere else in the guide-lines, that could constitute grounds for depar-ture in an unusual case” See U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). Accordingly, in
, we concluded that even if a specific guideline “linguistically applies” to the defendant‘s actions, and the basis for the departure is mentioned explicitly elsewhere in the Guidelines, a court may not conclude cat-egorically that that basis cannot take that case out of the Guideline‘s heartland. See
.
3
The defendant argues, and the government concedes, that
, does not re-solve the latter question. In that case, the defendant had offered to stipulate to a judicial order of deportation (authorized under 8 U.S.C. § 1252a(d)(1), now 8 U.S.C. § 1252a(c)(1)) but because the United States Attorney had not requested such an order, the district court had no authority to issue one, and thus the offer “had no practical or legal effect.”
.
does not answer the question whether a stipulation to administrative deportation-which clearly has a legal effect, although the parties dispute its practical significance is a permissible basis for downward departure. As the defendant points out, it is clear that an immigration judge has the authority to order the defen-dant‘s deportation. Even if
did control this case, however, the defendant points out that because it was decided before our en banc decision in
, reexamination of
holding might be warranted. Moreover, our recent decision in
, also does not resolve this question. In
, we held that in the case of a violation of 8 U.S.C. § 1326, deportable status may not be a ground for downward departure from the applicable guideline range. That decision, however, turned on the fact that anyone who violates § 1326 is, al-most invariably, deportable. As a result, we concluded that the factor was intrinsic to every conviction under § 1326 and, accord-ingly, that we were required to assume that the Sentencing Commission necessarily took deportable alien status into account when es-tablishing the Guidelines. Status as a deport-able alien, however, is very different from a stipulation to deportation. The latter is not intrinsic to the conviction.
4
The government‘s argument on this issue would, however, seem to suffer from the same problem that besets its position regarding the necessity of its consent. The government urges the court to follow the lead of the First Circuit, which has held that, even with gov-ernmental consent, a district court lacks au-thority to depart based on a defendant‘s stipu-lation to deportation, absent a non-frivolous defense to deportation. See
, cert. denied,
. Reliance upon the First Circuit‘s decision in
is proble-matic because its reasoning would seem to conflict with that of
and
; rather than examining whether the facts of the particular case took it outside of the heartland, as is required in this circuit, the First Circuit analyzed whether the factor itself, as a general matter, fell within the heartland of cases. See
; see also
;
.
5
Moreover, if this court were to accept the government‘s reasoning, then any time the government wanted to urge the prohibition of a basis for departure, it could simply define the category more broadly and insist that the narrower prohibition was permissible. (For example, the government could concede that the nature of a prior felony conviction can be a valid basis for departure, but argue that when the prior felony involves a child as a victim then the departure is always impermis-sible). The government‘s argument would simply transfer too much authority over downward departures from the district court to the prosecution.