United States v. Renford George Smith

649 (5th maximizing recovery. zinc agency Cir.1989), denied, found 258 cert. 495 U.S. high recovery zinc lowers both the over- (1990) (APA S.Ct. 109 L.Ed.2d 299 slag all volume of mobility and the applies toxic “when a mistake of the admin slag metals in the residue —results consistent body istrative is one that clearly had no goals RCRA’s minimizing broad bearing ... on the substance of the decision reached.”). reducing amount of waste and the likelihood leaching

of hazardous materials onto the 41,168. Fed.Reg. land. 56 at Petitioners III. ConClusion maximizing concede that recovery zinc For foregoing reasons, we conclude the volume of zinc in slag and, lower the — that EPA properly authority exercised its logically, the overall slag volume of itself— promulgating its final rule on the land dis- they dispute finding EPA’s that maximiz- posal of K061 electronic arc furnace dust. recovery zinc mobility will reduce the petitions for review are therefore hazardous constituents. Denied. We conclude minimizing the overall slag is, volume of disposed is to be

itself, justification a sufficient zinc standard,

treatment and therefore we do petitioners’

reach that EPA claim failed to

demonstrate that zinc is an pre- accurate

dictor of leachate levels of other constituents slag.

found in K061 Minimizing the volume slag of K061 is a hazardous waste —which UNITED STATES of America regulations under current EPA notwith- v. standing the fact that all of its constituents may not themselves be pro- George SMITH, Appellant. Renford “hazardous” — abiding motes RCRA’s goal reducing No. 93-3013. eliminating generation of hazardous 6902(b) (“The See 42 wastes. U.S.C. Con- United States Court Appeals, gress hereby it to declares be the national District of Columbia Circuit. policy of the United States that wherever Argued Feb. 1994. feasible, generation of hazardous wastes reduced or expeditious- eliminated as July Decided ly possible.”). note, finally, petitioners’ We lack opportunity to comment on one of the

agency’s setting rationales for the zinc stan

dard is not fatal to the final rule. In the

rule, EPA stated that the zinc treatment

standard designed also was abate

leaching itself, of zinc according

agency has been aquatic found to be an toxin. 41,168. Fed.Reg. Petitioners claim that EPA deprived them of an opportunity to correct,

comment on this They rationale.

but because EPA adequate indepen had grounds setting standard,

dent the zinc supra,

see its failure to allow comments on “aquatic toxin” rationale can be excused rule, APA’s “harmless error” 706. See Chemical Ass’n. Mfrs. 177, 202, 870 F.2d clarified,

EPA was the brief him on appellant. With Defender, Kramer, Public Federal

A.J. Washington, DC. Atty., Wash- Bohling, U.S. Asst. C.

James appellee. DC, argued cause ington, Ramsey John- were J. brief With him filed, time the brief was Atty. son, U.S. Trosman, Thomas Fisher, Elizabeth John R. Jackson, Asst. P. Connolly Odessa and G. Washington, DC. Attys., U.S. MIKYA, Judge; Chief Before: SENTELLE, Circuit WILLIAMS Judges. by Circuit Court filed

Opinion for the Judge WILLIAMS. Judge by Circuit

Dissenting Opinion filed SENTELLE. Judge: WILLIAMS, Circuit F.

STEPHEN question poses the ease This may depart below sentencing court where Guidelines indicated deporta- defendant, he is solely because objectively alien, prospect faces ble than he conditions prison severe more permis- departures hold such We otherwise. sible. Smith, a Jamaican George

Renford illegally in citizen, States the United entered arrested following year he was 1991. of five possession unlawful charged with intent base with more cocaine grams or 21 U.S.C. distribute, in violation 841(b)(l)(B)(iii), pleaded 841(a)(1) §§ him to sentenced district court guilty. The very bottom imprisonment, 70 months Sentencing Guide by the range indicated court, though appeals He because lines. sentence, his reduce expressing a desire declared, see basis really don’t “I ground, such claims Smith departure.”1 as a ways his status in two arguing that adventitiously, as he deportable alien will— conditions harsher subject him to sees it— First, his citizen. identical otherwise than an Tucker, Public Federal Asst. L. Robert him alien renders deportable as a status DC, argued the cause Defender, Washington, will end effect to that parture, her statement court's trial agree the dissent We Hazel, F.2d If States See United proceeding. at 664-65. ambiguous. Dissent finding See authority (D.C.Cir.1991). she had the court believed de- warrant did not the circumstances but that certainly ineligible almost for the benefits of aggravating or mitigating circumstance of 3624(c), kind, which directs the Bu or to degree, not adequately Prisons, practicable, reau to the extent taken into consideration the Sentencing prisoners assure that spend part of the last in formulating (but 10% of their sentences no than six should result in a sentence different months) possibly from including that described. In determining conditions — home confinement —that will pris “afford whether a circumstance adequately was oner a adjust reasonable opportunity to taken into consideration, the court shall prepare re-entry his into consider the commu sentencing guidelines, nity”. regulations policy statements, Bureau of Prisons bar and official commentary non-U.S. assignment citizens from of to a the Sentencing Com Commission.

not “aggravating policy prevents him 2-9.3 Whether such downward conditions 1466 munity tions as question of law that we decide de novo. downward serve any 5100.04: security prison, subject to the appear eral Classification United 1992).2 Sentencing courts are authorized to make mitigating adequately Bureau (D.C.Cir.1992). States Corrections More community Security Designation be rare part departures departure presents of or confinement can ever Manual, important, of his Prisons, taken ^[*] Williams, circumstances. See Fed confinement. Center except differences in sentence into account ^[*] Ch. 2-9 Program order to Bureau of Prisons being assigned circumstance[s]” 980 F.2d ^[*] same a threshold a minimum ambiguous Statement adjust Id. at Ch. (June probable justify Custody in what excep 1463, the Sentencing Commission “to consider whether 15, a Doe, the crime. reading of the statutes. See United States v. mission); 20, characteristics of the mission has answered it affirmatively, and U.S. -, -, that not related that defer to reasonable interpretations by Com open in 1488, 18 There 3553(b) 117 L.Ed.2d 341 934 F.2d that answer is an entirely reasonable although 1495-96 seems United States v. cf. reaches offender characteristics on the circumstances” Indeed, 3553(b) Williams v. United first 353, no doubt the controlling statutes are culpability, (D.C.Cir.1992). point, 359 question (emphasis Congress directed the (1992). offender (D.C.Cir.1991) (courts 112 S.Ct. the Sentencing Com Mason, an issue we left “aggravating as well is whether added). We believe 1112, States, encompass 966 F.2d 1119- as — or promulgation following matters, among others, with guidelines: of its respect defendant, to a have relevance” (b) Application guidelines in im- appropriate sentence, to the and then enu- posing a sentence. The court shall im- items, 11 merated ten of which are offender pose kind, a sentence of the and within the age, characteristics such physical condi- range, (a)(4) referred to in tion, subsection un- family ties, and history. criminal less the court finds 994(d).4 exists an U.S.C. The Commission has con- deportable 2. A ineligible alien automatically Immigration incarceratión in an & Naturaliza (1) for such quali- benefits unless he meets three tion Service detention center between his release strong fications—verified family/community ties deportation and his actual also calls for ad States, in the United a verified history justment. of domi- Restrepo, See United States v. (five cile in the United (2d or years), Cir.1993) States (rejecting claim); such a history a verified employment Soto, stable cf. United States v. F.2d 884-85 States, (2) United Immigration (10th or 1990). and Natu- Cir. ralization Service deportation determines that initiated, id., proceedings (3) will not or full, 994(d) 4.In reads as follows: Regional Director of the Bureau of Prisons (d) The establishing catego- Commission in requirement, waives the id. at Ch. 2-6. See also ries of 7-25-26, 8-1, defendants for use in the Ch. Ch. and Ch. 2-1. policy governing imposition statements 3. Before suggested the trial court fine, Smith another probation, imprison- sentences of or claim, expressly ment, he abjures, here Appel- governing imposition of other autho- lant’s Brief 9 n. prospect sanctions, of his governing rized the size of a fine or has Nonetheless, 994(e). the Commission items, stating its conclu- listed

sidered sen- where special situation identified Part Policy Statements sions Policy them. consider should tencing court Offender “Specific H, of the Guidelines — “[fjamily re- § 5H1.6 states Statement the Commission There Characteristics”. are rel- complied with” that are sponsibilities some these judges to take only authorizes proper restitution amount to the evant plain makes but account, into characteristics compliance with obviously Although fines.5 departure even a basis they may be good, the ais moral responsibilities family connection their where circumstances point, to rest not seem does moral nothing to do with sentence responsibili- that such on the idea rather blameworthiness. genuine burden ties are a 5H1.4, and' §§ 5H1.1 telling are Most way it somewhat treat should court as a substitute detention suggest home which questionable of income —itself a lesser would where, extreme of because imprisonment blameworthiness, taken yet to be to relation be as would disability, detention such age or restitution, choosing fines or in account into costly. In effect prison but less as “efficient” (f) (d)(3), (g). (d)(2), 5E1.2(a), and §§ see identify age extreme policy statements these of policy statements Although the it make disability as characteristics and to expressly linked H, 5, are not Part prison of a goals achieve possible to necessarily an be to etc.) 3553(b), they appear retribution, § (incapacitation, sentence H “ad- Part section. of that interpretation The Com- confinement. an alternative with a of whether ... the determination adjust- dressees] an authorized accordingly mission applicable be outside should sentence not in though type, of sentence —in ment Introductory Commen- range”, see nothing to having do reasons duration —for added), and (emphasis § 5H1 tary to blameworthiness. with only 3553(b) route be the to appears § family re- of treatment The Commission’s may do so. courts Besides view. a similar reflects sponsibilities Com- in the nothing unreasonable see responsibilities We family ties and including “mitigating circum- view that mission’s considered to be matters among the moral unrelated to factors include stances” 994(d), Commission Congress directed § Ohio, 438 Lockett “gen- blameworthiness. reflect assure to 2954, 973 L.Ed.2d S.Ct. ... U.S. considering of inappropriateness eral Mason, Supreme (1978), in noted as we responsibilities”. and family ties upon ac- dependence criminal (11)degree of imprison- probation, of length aof term the ment, tivity for a livelihood. release, governing and supervised or that shall assure release, Commission supervised or probation, conditions entirely neutral policy statements are lines the fol- consider imprisonment, shall creed, sex, race, origin, national as to the others, respect matters, to among lowing of offenders. status socioeconomic nature, defendant, any to the relevance have a service, extent, other incidents place of or appears an authorization to be Section 5H1.6 sentence, them take and shall appropriate "guide- set no departure, as the of a they do extent to the into account family incorporation of court's lines” fine, relevance— have a the selection responsibilities into (1) age; up- setting specific sharp its formula contrast to education; (2) offense in each for fines per limits and lower skills; (3) 5E1.2(c)(3). trial vocational § Whether U.S.S.G. level. to the (4) condition is responsibilities emotional mental of such consideration mitigates way part the defen- condition such is some technically extent that or a sentence, compare that such the extent Dissent culpability or to "guidelines” dant’s relevant; It is plainly difference. to little is seem make otherwise condition condition, drug including de- establish- (5) a factor relevant physical believe that hard not either guidelines sentence pendence; ment so, record; If aggravating circumstance. (6) mitigating employment previous departure so a basis may as be (7) responsibilities; considered family ties consideration adequately taken into ties; long "not (8) community Sentencing Commission". offense; by the (9) role 3553(b). (10) history; and criminal “mitigating” very Court treated as a broad suggests Dissent the Commis term, requiring juries post-Lara sion’s 5H1.4, in death amendment eases add ing “appearance, consider, including physique” allowed to “as a factor, aspects physical condition that any are “not aspect of a defendant’s character or rec- relevant, ordinarily” represents disapproval ord and of the circumstances .of of Lara. Dissent at 660. The Commission’s proffers offense the defendant as basis explanation stated limited: “In sev for a sentence less than death.” Id. at cases, eral courts departed have based Mason, quoted 98 S.Ct. at alleged defendant’s vulnerability to sexu Further, any at 1495. effort to draw line al prison assault in youthful due to appear terms of easy blameworthiness is not so ance and physique. slender This amendment appear. Many first of the offense char- expresses position Commission’s acteristics that the Commission addresses grounds such are not ordinarily relevant in 5K2 of the Guidelines —entitled determining whether a sentence should be “Departures” only dimly related to —are applicable guideline outside the range.” No moral blameworthiness. go Those that tice Proposed Amendments to Sentencing merely consequences of the criminal con- Guidelines, Statements, Policy and Com (see (death), duct 5K2.1 (physical 5K2.2 mentary, 1846, (Jan. Fed.Reg. 17, 56 1887 (extreme injury), § 5K2.3 psychological inju- 1991). certainly This is not outright an dis ry), § (property damage loss)), 5K2.5 Lara, approval of for the court plainly opposed itself, to intention and the conduct found extraordinary, the case not ordinary, seem at best to be classifiable as “moral 603, 905 F.2d at and in rested event not Martinez, luck”. See States v. United 16 appearance so much per on se as on the (7th 202, Cir.1994). F.3d 206 vulnerability” “extreme particular de fendant, 602, id. at through manifested actu Mason, As we noted the Second Circuit prison al intensity victimization of such has “mitigating understood circumstances” to the planned authorities assignment to soli beyond extend of degrees In culpability. tary defendant’s, confinement for protec the Lara, (2d United States v. 905 F.2d 599 tion, Moreover, id. at 602-03. the Commis Cir.1990), departure the court found permis sion is not diffident naming about eases that because of “potential sible the defendant’s for See, it e.g., overrules. Notice Submission of size, victimization” due to his “diminutive Congress to Amendments to the Sentenc of appearance immature and bisexual orienta Guidelines, Fed.Reg. 23,608, 23,609 tion.” Id. at appeared likely 601. It 1994) (May (citing contrary holdings to authorities, prison protect in order to him proposed amendment to Commentary on exploitation, from sexual subject him 5G1.2); Notice Final Regarding Action of solitary to confinement. Id. In we Mason Amendments to Guidelines and observed that prospect, this while it did not Statements, Policy 52,527, 52,- Fed.Reg. “reduce the defendant’s culpability, moral (Oct. 8, 1993) 529-30 (citing cases in dis ... was linked to purpose the retributive of agreement proposed ap amendment the criminal sanction the additional 3B1.1). plication §on here claims government The that Con- It noted rejecting departures. origin, of national consideration bar on the broad of Prisons given the Bureau gress had Congress’s di reflecting and quoted above prisoners assignment of over discretion the “assure that that the Commission rection facilities, said and among correctional entirely are statements exer- the Bureau’s disapproval of court’s “the sex, origin, race, national the as to neutral deny prisoner [a] of its discretion cise offend creed, status of socioeconomic minimum-security facility 994(d), reassignment to a departure for ers”, bars a departure.” on deportable inappropriate alien status basis for of ... an the effect is as the But prison characterizing conditions. defendant’s Besides F.2d at 645-46. 999 Restrepo, v. 999 in United court said States “disapproval”, such a departure as i.e., (2d Cir.1993), origin, “National F.2d 640 regard it as an encroach- appeared to court country, particular in a having been born Id.; see discretion. on the Bureau’s ment ‘alienage,’ however, synonymous with is not 420, Nnanna, 7 F.3d v. United States also country of i.e., being citizen simply not a Cir.1993) (5th Restrepo). (citing 422 Nor is Id. at present.” 644. in one is adjust- origins why all national a downward limited to do not see deportability We a U.S., person a born court, for even in of anticipation other than ment deportable if later dena may citizen be assignment policies, U.S. of application Bureau’s 1251-53, §§ 8 See U.S.C. tionalized. disapproval any more of a encroachment is in Lara in departure made was than not view Restrepo court did Although the expected as- defendant’s anticipation of the national statutory on consideration bar Circuit solitary. The signment Second departure for de- to a origin an obstacle question the reason- appeared not severe suffer more portable aliens who would It assignment. prospective ableness status, it of their on account confinement severity of the defen- simply noted that departures unautho- found such nonetheless by his be “exacerbated term would dant’s First, addressing F.2d at 644-46. rized. 999 Lara, confinement”, solitary placement 3624(c) §in Congress’s direction Mason, that, as we said F.2d at so practicable 905 the extent of Prisons to Bureau it could be “offset” a reduction in proxy sentence.more than a for factors the Bureau on, Mas n. 7.6 always put considers. To it way, another trying to assess deportable alien aspect is a second There the Bureau’s per really status se will assignment, affect discretion, however, gives pause us may identify be hard to an otherwise suggests to us that the identi- justify circumstances cal citizen to serve as a departure a benchmark. downward on account On the hand, other if deportable deportable alien’s alien severity assigned confinement is may quite prison rare. to a more drastic factors than otherwise sole- may ly the Bureau assignments consider in its escape because his would have the extra illimitable, is almost cf. v. consequence of defeating deportation, his Levi Wolfish (2d Cir.1978) 118, 125 (noting F.2d breadth of then the defendant’s status as deportable congressional Attorney mandate to General alien clearly generated would have increased inferring that administration of federal severity and thus might proper be the sub- prisons generally agency “committed to ject departure. of a The Bureau of Prisons by law”), grounds, discretion rev’d other Program suggests, Statement that this is not Wolfish, Bell U.S. 99 S.Ct. normally case, say but we cannot (1979), may 60 L.Ed.2d 447 and it be hard for deportable alien status will never be an inde- sentencing say court to fortui whether the pendent cause of a substantial increment in ty being deportable likely alien to have severity. any independent Partly effect. this is due to Further, complication assessing any basic we do not suggest multi- mean to that a decision, Fuller, factor see Lon L. is in order whenever a factor unre- Adjudication, Forms and Limits 92 Harv. prisoner’s lated to a just may deserts affect (1978) (limits adjudi L.Rev. 394-404 severity of his confinement. For a de- “polycentric” cation the face of problems), parture on such a to be basis reasonable the especially a decision that yet will not have severity difference in must be substantial and been made and event never be high must have a de- by any explanation. Further, backed formal gree of confidence that it apply will in fact if deportable ineligible aliens who are portion substantial of the defendant’s security very minimum facilities not so Finally, sentence. as the defendant’s status different from U.S. typically citizens who are deportable as alien is no means neces- assigned higher institutions, security then sarily just deserts, unrelated to his even a might say be hard to their status court confident that the status will lead to alone has caused an in severity. increase worse conditions depart only should when matter, Bureau of Prisons on the persuaded greater severity is unde- allowing assignment security to a minimum served. Thus the court will fulfil the Guide- prison community or corrections center for lines’ departures command that such will be deportable history aliens who have “highly infrequent”. U.S.S.G., 1, A, Ch. Pt. family strong ties, or community of domicile 4(b). more, years the U.S. of five or and of Thus, employment, stable Program although we Statement conclude that a down- Security Designation 5100.04: Custody departure may and appropriate ward where Manual, 2-9, Classification Ch. see 1 deportable note the defendant’s status aas alien is above, suggests likely that ineligibility pri stems to cause a fortuitous increase in the marily greater from the escape, severity sentence, likelihood of of his express we opin- no so deportable that status as a alien is little ion on whether a departure appropriate Restrepo text, was followed explana further without the court indeed observed that the mere fact Mendoza-Lopez, tion in United States v. deportability 7 F.3d did not render his crime serious 1483, (10th Cir.1993), 1487 speak Thus, and United States to his character. Id. at 737. Nnanna, 420, (5th Cir.1993). v. 7 F.3d 422 sequelae Unit appear and its to be the cases Larct Alvarez-Cardenas, (9th ed v. States 902 expressly addressing F.2d 734 departures issue of 1990), rejected Cir. unexplained a defendant’s accidentally circumstances that lead to an in- deportable that his claim grounds ’status as a objective severity alien was crease in the of the defendant’s departure. for a downward In that con- conditions of incarceration. Cf. Dissent at 668.

656 I think it good thing, dants, this a Beckham, find 968 v. States See United here. dissent. I respectfully beyond our (remand power (D.C.Cir.1992) for resen- 47, 55 F.2d of au- unaware court tencing district when ANALYSIS departure); see also

thority downward 420, Hazel, 424 F.2d 928 v. States United is, in the guidelines Sentencing (sentence guideline (D.C.Cir.1991) within with dis- instance, process, a mechanical first long as district so range not reviewable choices within a occurring only as to cretion fact) (cf. law or mistake no error of made and, under the range determined 776, Zine, 778 F.2d v. 906 States United eases, departures number in a limited Ogbeide, (D.C.Cir.1990)); v. States United forth in process is set range. That from that (D.C.Cir.1990) 793, (permissible Principles constitut- Application the General only for reasonable- departure reviewable Specifically, guidelines. B of the Part (2). 3742(f)(1) & ness); see also oblige the sen- Instructions” “Application tencing judge to and remand Accordingly, we reverse (a) offense resentencing. applicable Determine Chapter Two.... section guideline ordered. So (b) level and the base offense Determine specific any appropriate offense apply dissenting: SENTELLE, Judge, Circuit particu- in the contained characteristics then-existing concerned or- Two guideline lar ‘unjustified]’ “had sentencing system two der listed. consequences,” Mistretta and ‘shameful’ (c) appropri- adjustments as Apply the 361, 366, States, 109 S.Ct. 488 U.S. United role, victim, and obstruc- ate related (1989) (quoting L.Ed.2d 714 A, B, Parts and C of justice for tion of (1983)) (“Report”), Con- S.Rep. 98-225 No. Chapter Three. Act of Reform gress enacted (c) (a) through (d) [Rjepeat steps ... § 3551 1984, currently at 18 U.S.C. codified multiple offenses].... [for Act”). (1988) (“the first of those seq. et (e) adjustment appropriate as Apply the consequences “was unjustified shameful respon- acceptance for the defendant’s imposed among great sentences variation sibility. ... similarly judges upon situated by different (f) criminal the defendant’s Determine Mistretta, 488 U.S. offenders.” A in Part history category specified consequence Viewing at 652.1 S.Ct. B from Part Determine Chapter Four. impediment to an evenhanded “a serious adjust- applicable Chapter 4 other sys- justice operation of the criminal effective ments. Sentencing Com- tem,” Congress created empowered that and instructed (g) mission Determine system de- guideline corresponds to create a Chapter A Five that Commission Part of sentencing disparities history signed “reduc[e] to and criminal offense level to the flexibility to ad- retaining needed the category while determined above. arising in unanticipated a just factors (h) range, guideline particular For the 366-67, 109 S.Ct. at Id. at particular case.” through Parts B G determine from 62). 78-79, (citing Report 652 sentencing require- Chapter Five the probation, to options related ments and rejects congressional Today’s the decision conditions, supervision imprisonment, Act and re- Sentencing goal of the Reform fines, restitution. and days and of indeterminate turns us to the (i) H K of Parts and Refer to sentencing thought judicially-individualized Five, Offender Characteristics Specific Though I Act. will the to be undone other and Departures, many judges, no doubt defen- grant 652. That conse- S.Ct. at U.S. at 109 uncertainty 488 as to the time was the 1. “The second current decision. spend prison" quence due to the relevant the in is not would the offender parole system Mistretta, existing Act. before the commentary statements or appealable. the itself depart “Decisions not to might lines that warrant consideration in applicable downward from an guidelines imposing sentence. range, generally only reviewable to the extent (1993). imposed were § 1B1.1 violation of U.S.S.G. imposed law or were as a result of an incor- Thus, sentencing a particular defendant application rect the Guide- offense, particular for a sentencing Ortez, lines.” United States v. 902 F.2d clearly follows a roadmap delineated set (D.C.Cir.1990). Although may not ex- § forth in 1B1.1. roadmap That will lead the haust the possibilities, universe of this usual- clearly range court to a established set forth ly means that a defendant not appeal one-page sentencing table at 5A of judge’s from a depart decision not to unless guidelines. Appendix, See It is infra. she scope “misunderstood the [her] judge after the district has reached the sentencing authority guidelines range be- depart determined she free to cause that ... misapplication abe process from this mechanical and make a guidelines,” discretionary reviewable under 18 decision as to what U.S.C. sentence 3742, Hazel, or, 928 F.2d at assign range instances, majori- within that 423. The rare ty hangs its depart decision to whether to from reverse on range. a weak hook, supposing that judge the district incor- present case, parties In the both and all rectly believed she could execute a down- panel members of agree this that the district departure ward on the basis of the defen- judge correctly followed the 1B1.1 road- dant’s illegal status as an alien. Because I map to arrive at range the correct to 87 —70 believe the district judge entirely was correct specific months. She then chose sentence in her assessment of power,2 her own lack of within that judgment entered my I dissent colleagues’ from conclusion that period months, confinement for a of 70 to be we have authority to review and reverse period followed supervised release. her decision based that correct assess- appellant Neither my colleagues nor' ment. quarrel with the judge’s exercise Indeed, range. choice within the appellant majority’s conclusion that a sentencing appeal would not be able to from the sentenc authority court has under the discretionary court’s appro choice of an effect a downward from an estab- priate guideline sentence within range. guideline lished range based on the status of Act, Under the a defendant appeal can the defendant illegal as an alien rests on “(1) sentencing decision if the sentence was fundamental errors in its understanding of (2) law; imposed in violation of imposed was guideline sentencing. first to- result application of an incorrect tally of, misunderstands the role and there- (3) sentencing guidelines ...; ... was misapplies, 994(d); fore second, greater than ... specified the sentence to a Sentencing defers Commission construc- applicable guideline range....” of an ambiguous statutory tion term that the 3742(a)(1) (3); United States v. Ha — made, reaching never a bizarre zel, (D.C.Cir.1991). Conse setting result and a dangerous precedent; quently, only possible area of error is the finally, employs a too-critieal reading of judge’s refusal record, proper inconsistent stan- range at sentencing step set forth in dard of review. I shall address each of these lBl.l(i). § It U.S.S.G. this is refusal to de flaws in turn. part appellant that attacks. And it is this depart refusal to that my colleagues —erro Statutory A Interpretation The neously to be error. —find In analyzing scope the of the district I. THE MAJORITY’S APPROACH authority depart court’s to based on al- the indisputable It is judge’s that legedly refusal to circumstance the de- depart guideline from a sentence is not of previously fendant has broken another law assessment, IE, 2. If indeed she made such an see infra. congres- of that In furtherance alien) the defendants. begin (ie., where illegal he is an charges the Com- 3553(b). purpose, the statute As sional § 18 U.S.C.

majority does—with guide- promulgate relates, duty to the correctly section with majority mission the general sentencing a sentence courts impose the court lines use mandates by guide- application of regarding the range determined policy statements the within 994(a)(1) §§ exists & it finds “that there except when See 28 U.S.C. guidelines. lines the mitigating circumstance (2). or the Commis- aggravating then directs an The statute taken adequately kind, degree, not categories to a sion, establishing “in offenses Sentencing by Com- the “policy into consideration state- guidelines in the use formulating guidelines the in mission ments,” seven listed consider whether to in a sentence different others, result “among should anof offense characteristics range. by the determined extent, that” nature, to the any relevance have 3553(b). § As the 18 U.S.C. See service, incidents of or other place range of notes, the correctly to determine 994(c). § 28 U.S.C. appropriate sentence.” exception re- by this conferred discretion directs, offense charac- as to those It further “mitigating term to quires a court define teristics, is to take them that the Commission correctly identi- having But circumstance.” establishing the into account majority turns incor- question, the fied the they do have rele- “only the extent that to step. at the next rect Id. vance.” case, asked the defendant present In the sentencing appended table A at the glance on the to downward court the district process of reveals to this dissent defen- in the status a feature basis of sentencing is determining the alien.3 illegal he is an specifically that dant — App., grid. reading of a See infra. status question then is whether next grid is labeled “Offense' axis of the vertical mitigating circum- be characteristics can by applying the and is determined Level” 3553(b). In meaning §of stances within by the Com- guidelines created level offense its conclusion that seeking a basis for 994(c) promul- §to in obedience mission 994(d) § can, majority looks to U.S.C. Chapters and Three gated in Two a list of eleven characteris- and finds therein Guidelines, entitled United States tics, are related ten of which at least “Adjustments” re- Conduct” and “Offense majority finds a listing, the In this status.4 that the Commission spectively. It is here that an- conclusion for its ultimate premise charge of 28 out the U.S.C. has characteristic, alienage, carried illegal status other 994(e), nothing for a left § and there The first mitigating circumstance. can be section, nor carry does out reasoning is that 28 U.S.C. to do this problem with 994(c) anything. The 994(d) a court to do nothing § do direct whatsoever to guide- carrying out the duty under 18 lies mitigating circumstances court’s 3553(b). set forth characteristics The offense lines. 994(c) to be considered are 28 U.S.C. to the charge was 28 U.S.C. only to the extent the court setting scope out Sentencing Commission factors for consideration them lines make Indeed, caption undertaking. its upon the vertical axis determining point statutory text reads: that section pencil places her before judge at which the Commission.” “Duties of page to intersect across she runs to the That directed 994. section axis, la- horizontal governed column defendants, toward sentencing of but rather (Criminal Category History beled “Criminal guidelines, of a the creation set Points).” History the framework then section, Maj. op. at see the full text of that 4. For this couch characteristic 3. While I would not terms, be con- rather consider status 651 n. is, continuing vio- is in duct—that the defendant immigration to re- laws—in order lation of the accept majority’s analysis, their spond to the argument. purposes of framework brings § 5H1.7, §§ us to the That subsection 994 U.S.S.G. 5H1.8 spe- and 5H1.9. It upon majority which the cifically relies. Just as sub- included role the offense as an (c) directed the adjustment section Commission to review factor in computation of of- offenses, characteristics decide to what fense purposes level for of the sentence table they extent are relevant to the determination Chapter Three, under Part B of the sentence, appropriate of an and take them specifically lines. It included criminal histo- “only they into account ry, the extent that do computed Chapter Four of the (d) relevance,” have subsection directs the guidelines, as the determinant of the horizon- analysis 5(a) Commission to conduct the same § tal axis of grid. Finally, specifi- it characteristics, to the eleven listed “among cally dependence included upon criminal ac- others,” of See tivity 28 U.S.C. for a livelihood as a computing factor in defendants. 994(d). is, § That the Commission is to applicable history criminal level on the consider whether those characteris- Four, horizontal axis under Part B. offender nature, “have tics relevance ex- short, 994(d) § gave the Com- tent, service, place of or other incidents of an mission certain instructions as to how it was sentence,” and, having appropriate made that guidelines. construct the The Commission determination, only “take them into account has followed those instructions and has con- to the extent that do have relevance” in guidelines. structed the Neither the statuto- designing guidelines. Id. ry scheme, history, structure, its its nor its plainly imposes The subsection no language gives any 994(d) duties suggestion § courts, nothing has to do with anything has to do determining depar- circumstances, nothing and has to do with or defining tures mitigating circumstances. application guidelines. again My It is colleagues base their conclusion that the charge ambiguous the Commission as to statutory what is “mitigating term cir- promulgation to do in the guidelines of the cumstances” could include status characteris- Again, offender, themselves. the Commission has car- tics of the supposition on the statutory 994(d) charge. majori- ried out its § As the 28 U.S.C. something to do with ty notes, itself the Commission has deter- the construction of that term. As that sec- specified § and mined charge 5H tion is a to the having no extent to which each of several relationship circumstances,” character- to “mitigating age, istics has analysis relevance: their is flawed its foundation and 994(d)(1) § 5H1.1; § and U.S.S.G. education must fall. 994(d)(2) (3) skills, §§ vocational and & and 5H1.2; §

U.S.S.G. mental and emotional con- B. “Deference” 994(d)(4) dition, 5H1.3; § and U.S.S.G. leg majority’s The second analysis is condition, physical including drug depen- proposition that we owe deference to the dence, 994(d)(5) 5H1.4; and U.S.S.G. ambiguous Commission’s construction of the 994(d)(6) employment record, § and U.S.S.G. “mitigating circumstances,” term and that 5H1.5; family responsibilities ties and the Commission has construed this term in a 994(d)(7) ties, (8) community §§ & impelling fashion us toward the conclusion each, § 5H1.6. As to U.S.S.G. the Commis- majority premise reaches. As to the first sion concluded that the status characteristics proposition of this can be no doubt. ordinarily “are not in determining relevant quite correct that the Com- whether a sentence should be outside the interpretation governing mission’s of its stat- applicable guideline range.” See U.S.S.G. ute entitled to deference under Chevron §§ 5H1.1-5H1.6. NRDC, 837, 842-45, Inc. U.S.A. 467 U.S. remaining As to the specified 2781-83, factors 104 S.Ct. 81 L.Ed.2d 694 994(d) is, (1984). Offense,” Thus, “Role when the Commission has con- —that History,” “Dependence “Criminal ambiguous statutory strued an term such as Activity circumstances,” Criminal “mitigating a Livelihood”—the “we can ask relevant, Commission did deem interpretation] those and so [that is a reasonable permissible indicated codified at statements construction of’ the relevant to a decision alienage is relevant Doe, that to hold v. States statutory section. United that it is reversible further depart, and to (D.C.Cir.1991). F.2d that she judge to rule for a error district that see “we majority’s conclusion aas characteristic this status use cannot Commission’s nothing unreasonable logic find such I do not departure. basis include ‘mitigating circumstances’ that view compelling. blameworthiness,” moral to unrelated factors majority’s proof the Commission that however, It not, follow. Maj. op. at does is unconvinc- a determination made such has had ever if the Commission might follow 5H1.4, §§ & majority cites 5H1.1 ing. The view, the Commission a expressed such age” of “extreme the relevance discuss which majority examples the of the not. Each has that infirmity a determination to serious Five, H of the Part Chapter draws from as, and as efficient be detention “home proposition that the support guidelines to support than, to imprisonment,” costly less can be of the offender characteristics status has that Commission proposition the the the or more of one factors lists mitigating deference-worthy determination the made dictated characteristics specific offender argu- rely. Admittedly, this instance, governing the Congress. each In has that Commission establish the does ment charac- explicitly that such guideline declares possibility the that at least considered relevant in deter- ordinarily are “not teristics personal whose specific offenders may be outside a sentence should mining whether infirmity are so age and circumstances range.” See applicable Guideline the sen- to warrant from as extreme upon these Based §§ 5H1.1-5H1.6. U.S.S.G. the question If that were tencing norms. Commission, my col- by the determinations majority us, the might I concur with before that conclusion reach the leagues somehow offered a has determi- the Commission that a determination has the Commission made However, defer. we should to which nation characteristics, in- category of that a broad question us. before is not the that Five, HPart Chapter in cluding listed those determining a sen- sup- attempting in to surprisingly, are relevant to Most applicable outside the should be the Commission’s tence port proposition the range. specific offender character- line treatment Part H of the listed in istics possibility that recognize the theoretical I mitigating as guidelines must be considered allows language character- Commission’s court, majority sentencing by the factors ordinarily decision relevant” “not istics (2d Lara, 905 F.2d United States cites relevant extraor- depart to become Cir.1990). Lara, held Circuit Second I no doubt dinary have circumstances. err in court did not downward- that a district open that intended to leave departing from the ly follow But cannot possibility. theoretical imma- of “the defendant’s basis reasoning the Commis- majority’s likely have appearance,” which ture possibility of to the unfore- wise nod sion’s severity to be of his incarceration caused constitutes deference- circumstances seen solitary placement his “exacerbated “mitigating circum- worthy interpretation of Lara, What confinement.” include, specific of- not stances” that the Com- not note is does expressly described characteristics fender amendments plain its next made mission relevant,” any other but also ordinarily “not it did not share guidelines lumped might be characteristic views on relevance Circuit’s Second defined, broadly vaguely inclusive in a them appearance as a the defendant’s My col- category of status characteristics. factor. reasoning following leagues may find the decision, § 5H1.4 At the Lara time expressly compelling: the Commission read, part, “[p]hysical pertinent condition [, not example,] is “age determined determining ordinarily relevant to a decision ordinarily relevant therefore, be outside should we whether sentence Sentencing,” Guideline Doe, where within Chevron, guidelines or applied bound under U.S.S.G., C, 18, which, fall.” App. sentence should See unlike 28 U.S.C. actually is (1993). at 214 In the Commission directed the toward duties the sentencing part amended that of the to judge, section describes the sort of mitigating cir- read, “[p]hysical appearance, condition or in- may cumstances that be taken into account in cluding physique, ordinarily is not relevant in determining whether or not to determining a sentence should be guideline range. the That section mandates applicable guideline range.” outside the See that the court sentence within range the pre-amendment id. at In the 215. version of unless it “an aggravating finds or mitigating guidelines, read, the the next sentence “How- kind, circumstance of a or to degree, a ever, extraordinary physical an impairment adequately taken into by consideration the may impose be reason to a sentence other Sentencing in formulating the than imprisonment.” Id. at In 214. the' guidelines that should result a sentence version, amended expanded the Commission different from that described.” 18 U.S.C. policy its statement. The sentence now 3553(b) added).- (emphasis The Commis- reads, “However, extraordinary physical an sion did the consider obvious relevance of impairment may impose be reason to disposability income level and setting the applicable guideline sentence below the of fines and took it into consideration in range; e.g., in seriously the case of a infirm formulating guidelines. the having That defendant, home detention effi- done, been it left no relevance for that factor as, than, costly imprisonment.” cient and less except in “atypical insofar as case[s]” the submit, therefore, Id. at 215. I would might properly “highly make one of its the comprising statements Part H of infrequent” departures. See U.S.S.G. guidelines, Five of the insofar as lA4(b) 5-6.6 at. they represent deference-worthy interpreta- If I the reasoning understand ma- Commission, by compel exactly tions jority correctly, it premise starts with the opposite result than that reached the ma- that the Commission used a factor unrelated jority.5 determining blameworthiness in the guide- Equally unconvincing majority’s is the reli- line sentencing concludes that Policy ance on the Statement 5H1.6 to compelled courts are therefore consider “ ‘.[fjamilyresponsibilities effect ground departure any other non-blame- complied are with’ are relevant to the amount worthy characteristic attributable to de- proper Maj. restitution or fines.” op. at fendant. leap logic breadth of that Indeed, 652. the Commission did take into only by succeeded expanse the infinite of its family account responsibilities that are com- consequence, which, discern, so far as I can plied in computation of fines and restitu- limiting is without principle. I will discuss tion, along with person income levels of the consequence part further in ID of this being 5E1.2(a); §§ sentenced. See sum, dissent. majority’s major prem- 5E1.2(d)(2); 5E1.2(d)(3); 5E1.2(f); 5E1.2(g). ise that we should defer to reasonable inter- However, majority’s reliance on the fami- pretations of the Act the Commission is ly responsibility language §of 5H1.6 and on undeniable. But syllogism fails at its the cited sections of only inap- 5E1 not premise. minor We cannot defer to an inter- posite, but complete reflects a misunder- pretation that the Commission never made. standing guidelines. The Commission has determined C. The Result family and income characteristics set forth computation relevant to the Not majority’s do I think the reason- case, being level. That reaching its conclusion is fundamental- plain Act ly flawed, makes are irrelevant to a Ibut think the result it reaches 3553(b) departure decision. utterly Section of title this case is indefensible. As the Su- part 5. See might atypical further discussion in II of warranting this dissent. sive assets be an case upward departure. E.g., having nominally a defendant low in- extremely responsibilities come low and mas- this circuit: law of following as the lishes noted, Congress intended preme Court guilty plead (a) and Smith Jones Defendants Act would strike Sentencing Reform (b) offenses; two criminal to identical “great variation evil of against perceived except histories have identical similarly defendants upon ... imposed among sentences illegal activi- in more engaged Mistretta, has that Smith 488 U.S. at offenders.” situated (c) has Jones; sentencing judge the Commission, ty than 366, 109 As at 662. the S.Ct. holds error if she it, committed reversible deference, “Congress put we whom owe system the depart from cannot she uniformity in sought reasonable than the to Smith sentence give a lesser disparity in sentences wide by the narrowing give to by law to required she is one which commit offenses similar criminal imposed for hypothetical extension is not a This Jones. U.S.S.G. by offenders.” ted similar decision; today’s decision. today’s this is 1(A)(3). goal, and ac of accomplish this To fact that Smith majority holds of similari or lack similarities for the count country in violation illegally the has entered offense, construct the Commission ties the lawfully entitles seq. et of 8 U.S.C. conduct de of offense axis ed the vertical sentence a lesser him to consideration of above, computed on the basis the scribed identically-situated offend- than an otherwise crime, by arguably sta adjusted defendant’s in that same addi- engaged has not fac er who adjustments and victim-related tus-based this re- 3(A) activity. I illegal submit §§ tional Chapter 3. See U.S.S.G. tors in with the sentenc- 3(B) (Role inconsistent totally (Victim-Related sult Adjustments); by Congress and de- 3(D) (Mul mandated 3(C) (Obstruction); structure Offense); the signed by the Commission. 3(E) Responsi Counts); (Acceptance of tiple bility). D. The Precedent arguably related” Beyond “status the tell, today’s decision I far as can adjustments So actually “conduct determined” any that when (C) proposition for the (E), precedent 3(B), offender §§ & set forth in any purported virtually compu- defendant advances play the come into characteristics why sentencing judge should axis, reason Histo- “Criminal of the horizontal

tation Points).” from the determined (Criminal downward History See ry Category exception, the guidelines, almost without de- principal 4. The two Ch. U.S.S.G. error judge has committed reversible History, district are that axis Criminal terminants of I have says cannot do so. if she that she 4, A, Offenders Pt. and Career U.S.S.G. Ch. limi- majority opinion for some Livelihood, Pt. searched the Ch. U.S.S.G. and Criminal possible grounds tation on area of second account B. These take recognition that the only the and have found congressional in the similarity considered out of the completely taken namely, goal the Commission: as defined categories suspect similar, may departure universe be when offenses creed, race, sex, religion, origin, national offenders. between relevant dissimilarities status, guid- lack of as well as socioeconomic A and B titles of Parts from the As is obvious circumstances, youth and similar similarity ance as measures per- alcohol abuse drug dependence and are those deemed relevant the Commission Maj. op. at 664 difficulties. history financial sonal past criminal concerned with 5K2.12). 5H1.10, 5H1.12, & (citing §§ 5H1.4 activity of the of- criminal present level that, majority Beyond I do not find history Thus, greater fender. point. any logical stopping opinion activity, higher greater the criminal the sen- greater and the the offender level majority expressly disavows range. applicable tences within the mitigating circumstances must thought that (or “moral culpability sentencing, related to the logical system of Against this blameworthiness”) It does of the offender.7 which estab- my colleagues a decision issue Ohio, unrelated include factors cumstances" 438 U.S. majority 7. The relies Lockett Lockett, blameworthiness, noting (1978), moral 98 S.Ct. L.Ed.2d ‘mitigating’ as Supreme treated Court "mitigating cir- "the support conclusion that for its am, any defining not offer substitute. imposes any Rare, how that real limit. if not fact, why uncertain be- nonexistent, would be the defendant who being illegal lieves that alien falls within (or personally counsel) could not through category mitigating circumstances. So think why of some punishment reason might determine, far as I can that conclusion is fall heavily upon more him upon than based on the defendant’s assertion that if he general category of offenders in which he equally citizens, is sentenced with American Indeed, otherwise falls. precedent under the heavily that sentence will fall him set opinion, this I would think it almost a deported because he is to be and will not be prima malpractice ease of if a defense facie able to serve last few months of his attorney up did not come with at least one custody sentence in a facility reduced as he such days reason. In the before the asserts would be the case with otherwise lines, judges when were free under most similarly situated American citizen offend- sentencing regimes impose any sentences Maj. op. (citing Security ers.8 See at 651 statutory below the fit, maximum they saw Designation Custody and Classification Man- every almost attorney defense offered some (June ual, 1992)). However, 2-9 Ch. I do such reasoning. today, they After again. will my colleagues not understand saying to be argument, my At oral colleagues thought it mitigating that circumstances are limited to ingenious suggest of me to that a defense punishment factors that cause to fall more attorney representing an older offender heavily upon one defendant than others. that, would given assert expec- his lesser life Rather, I positing understand them to be tancy, years a term of would fall heavier that more burdensome confinement condi- upon him than defendants; on other I did not mitigating tions are a of subset circum- think so. At the risk being excessively sentencing judge stances which the must con- spent major I autobiographical, or commit sider reversible error. But fraction of even my majority tack, professional if the time from takes the former 1970 until Novem- (less offers more ber of burdensome confinement condi- than a month after tions as its limiting principle, I fail to see effective guidelines) date of the in the crimi- term, very requiring juries 604-05, broad only capital that in death cases. See id. at 98 S.Ct. consider, ("We that, cases be allowed cases, 'as a recognize at noncapital factor, any aspect of a defendant's character or practice the established of individualized sen- any record and of the circumstances of the of- commands, tences rests not on constitutional proffers fense the defendant as a basis for a public statutes."); on enacted into id. at Maj. op. sentence less than death.’" at 652-53 ("We emphasize 605 n. 98 S.Ct. at 2965 n. 13 Lockett, (quoting 438 U.S. at 98 S.Ct. at dealing imposition that in with standards for 2965). From Lockett's broad use of the word regard- death sentence we intimate no view "mitigating," concludes that a broad ing authority Congress of a State or of the compelled construction is also in this case. mandatory, fix noncapi- minimum sentences for crimes.”). then, Charitably put tal Lockett's use Lockett, years written six before the enactment adjective "mitigating” of the to describe the cir- Act, obviously proper did not address the requires juries cumstances the Constitution interpretation "mitigating of the term circum- penalty provides consider in death cases slim 3553(b). fact, stances" as used in 18 U.S.C. support majority’s interpretation for the of that purport

Lockett did not to construe the term 3553(b). term as used in "mitigating circumstances" as used in con- Rather, gressional statute. Lockett dealt with a apparent It is not to me that all United States very question presented different than that eligibility community citizens have the same mandatory penalty here—whether Ohio's death confinement, illegal correction center all scrutiny. statute could withstand constitutional not, required aliens are to have the same level of reasoning Court held that it could confinement, security legal or that aliens are respect humanity underly- "fundamental deportable Eighth also treated as requires after have been Amendment ... consid- felony convicted eration of the housed in facilities of character and record of the indi- security vidual the same offender and the level as the offender is an circumstances of the who Therefore, illegal particular constitutionally indispens- offense alien ab initio. it would seem rationale, part process inflicting majority's able penalty under the unless an (alteration (internal death.” Id. original) categories offender falls into whichever of these deleted). quotation confinement, subject The Court was careful to is the least to secure warn, however, solely always "mitigating that its directly decision was based circumstance” applied parallelling on constitutional present concerns and was to be the one in the case. reject That it.” considered I have fully dozens I heard courts. nal trial then be done, the case would presumably, attorneys variations make defense States by the rule of United governed age, my client’s as “at stated argument, often Ortez, applying F.2d sentence, Honor.” Your is a life years five 3742(a)(2). Thus, not to de decision be heard arguments will today, After those applicable from an part downward sentencing judge con- and unless again, unre- generally again be once would record, commit- them, she has on the siders But case. hope that be the will viewable. error. reversible ted again unreviewable if do make once even we despite the Commis- applies result This unre- Congress intended be § 5H1.1 that expressed in decision sion’s 3742(a)(2),it viewable under ordinarily rele- (including youth) is not “age duty on an al of one expense a sentence determining whether vant court, district ready overburdened applicable be outside should recita required rote of one more spectacle majority’s decision Ironically, range.” case, legitimate fulfilling no every tion illegal alien is a being ah that the status anyone. expectation of its belief depends on mitigating circumstance statement, ordinary rele- district very However, of no that I am not certain the that this deference-worthy appeal so vance, off the be able to head was court would decision, must be having Today’s a characteristic established easily. that such decision sentencing.9 virtually judges in by consider considered district court must that the district to offer defendant wishes anything that old, surely the not then defendant is If the departure before for downward basis his argue either attorney can that defense legally dictated sentencing within make it will and skills vocational educational presage to a series range, appear line than others cope prison him to for harder enough determining just what of cases emotional, mental, situated; or his similarly I far as So consideration. record evidence period make the will physical condition present state tell from can him; upon or that harder imprisonment fall reviewability terms of 18 (specifically, law being not such that employment record is his 3742(a)(2) of this § the decisions and heavily upon him work will fall able to Hazel), a mere statement court in Ortez record; or that no such who have than others might judge she have by the district communi- ties, responsibilities family his would be basis depart to power harder them ty will make severance ties Again, appellate review. enough preclude to others; or, conversely, that upon than on him However, case. be the hope I that would upon harder will make it of such ties his lack thought I would have today’s decision before nobody to visit will be him because to been sufficient record to have present hereafter, short, every time a dis- him. In perhaps I will be appeal, so off such an ward imposes a sentence within judge trict again. wrong law, by we dictated district did expect appeal E. Record factor, mitigating properly not consider every factor some about henceforth since said, at all convinced I am not All that mitigating circumstance. will be defendant district majority’s of the construction is cor- present judge’s record words can head grant that the district court I will is, certain that even I am not she simply rect. That portion appeals of these least a off at illegal the status decide like, meant to “I realize that saying something by be considered as lawfully not something could alien argument advances counsel’s majority circumstance. mitigating under circumstance might be a court, expressing a though Smith; however, “the states that of United States rule by they on those relying what my colleagues' have no meant idea I read least that is how 9. At handling age portion sections Commission’s deference reliance 5H1.1, §in factors” listed the other "status opinion. intend, then seq. not what I et If that is sentence,” guidelines desire to reduce found [Smith’s] the facts. Even in the determi- Maj. ground departure. op. statutory enhancements, no 650. nation of such as However, appears to me that if all that whether certain conduct constitutes obstruc- justice 3C1.1, means is that the district court found “no tion of under or more than ground departure,” then the sentence is planning 2Fl.l(b)(2)(A), minimal under we unreviewable. apply “clearly a deferential erroneous” stan- dard of review to a district court’s decision noted, already As I have 18 U.S.C. 3742(e). under 18 U.S.C. We are directed 3742(a)(2) dictates that “decisions by apply statute clearly erroneous applicable guide downward from an standard to the district finding court’s range” generally lines unreviewable.- Or- sentencing, facts on “give and to due tez, defer- majori 902 F.2d at 63. I think What ence to the application district court’s ty saying judge is that the district held (emphasis to the facts.” Id. add- illegal alienage that the status of could not ed). Kim, In United States v. lawfully ground departure, be a and that (D.C.Cir.1994), we made clear that this erroneous, holding her was so as make her presumably “‘[d]ue deference’ is meant appealable decision fall somewhere between ‘clearly de novo and 3742(a)(2) misapplication as “a Today’s determination, erroneous.’” that a Hazel, fact, guidelines.” 928 F.2d at 423. district court commits a reversible error sentencing judge what the said on the record holding personal that a factor created was, wish, really truly “I that I could defendant’s own misconduct is not a basis for reduce, really don’t see basis for departure, seems to me to show no deference departure.” majority’s interpreta While the at all. possible tion of the district court’s words is a one, one, only I think do not it the or even II. WHAT ARE “MITIGATING likely. the most CIRCUMSTANCES”? Again, committing perhaps what is a cardi- (but I majority’s have asserted that the decision appellate judge easy nal sin for an one illegal that status as an can dissent), alien a my to commit in I constitute experi- recall own mitigating circumstance is based on a flawed days ence in the trial courts. before understanding concept mitigating guideline sentencing, having after heard all circumstances, and that the decision to re- pleas probation leniency, a sen- verse the district court on that errone- tencing judge including writing the one this based — understanding might ous like, is incorrect. Some typically something said dissent — “Counsel, challenge produce my therefore me to own give your I’d like to client a lenient (correct) understanding sentence, as to what is includ- just I any but can’t see basis for “mitigating within ed the term circum- lawfully it.” Each of us knew that we could 3553(b). § stances” as used At give lighter U.S.C. sentence. We did not mean being ducking ques- the risk of accused of phraseology lighter that to indicate that a tion, I do not think the court is unlawful; called sentence was simply we meant today mitigating to decide facts, what can be a that good we could not on the or in only conscience, circumstance. We must decide whether enter the more lenient sentences determining this district court attorneys erred that always requesting. that were I illegal alienage could not be such a suggest possibility at least the this is circum- (assuming argument here, stance sake of doing what the district court was I determination). she made that suggest further that absent clearer error reveals, my than this record if even col- Sweeping pronouncements on what could leagues were correct about what constitutes mitigating only be would circumstances be circumstance, mitigating judgment this express sweep- dicta. For a- to dissent such should still not be reversed. ing pronouncements would less than dicta. To ignore Accordingly, yield temptation reverse on this record to I to applicable rudimentary circuit law expressing thoughts on the standard of re- some application subject, clarify- view for a district court’s to the extent say mitigating circum- about mission has outside why place alien status I Smith’s stances. I mitigating circumstances. category of understanding that a dissenter so with the do Commission, introductory sec- precedent as to what empowered to set is not manual, gives the courts tion of its vein, I offer these In that can fall within. departures. See helpful discussion defining principles sen- thoughts as to what lA.4(b). departure should us that § It tells determining employ in judges might tencing atypical an case a court finds “[w]hen occur warranted, in order departure is linguisti- particular ... which a illegal alien- the status of significantly demonstrate where conduct cally applies but departure. proper basis for age not a norm-” U.S.S.G. from the differs lA.4(b) further § The Commission at 5-6. First, text of the I look to the specific sections us reminded trial Congress required statute. the mandate of 28 guidelines, in obedience to impose a sentence within court to 994(d), certain characteris- deemed ... finds an range “unless the court line expressly irrelevant tics mitigating circumstance of a aggravating or purposes, table for all took them off the kind, adequately taken degree, not or to a (citing id. at 6 including departure. See Com- into consideration creed, (race, sex, origin, national 5H1.10 3553(b). I would ...” mission. status); § 5H1.12 religion, and socioeconomic my analysis with the understand- begin thus (lack youth and similar guidance as a “aggravating” and Congress used ing that circumstances); 5H1.4, sentence third ordinary antony- “mitigating” their condition, depen- including drug (physical recognize Congress meanings. mous abuse);. 5K2.12, last sen- alcohol dence and to define have “intended (economic hardship, financial personal tence narrowly that reduces a as one circumstance difficulties, upon a pressures and economic culpability or more broad- moral defendant’s business)). that, Beyond the Com- trade or in- circumstances ly to include all relevant to “limit expressly decried intent mission punish.” United cluding a reduced need ... that could constitute the kinds of factors Mason, 1488, 1495-96 States departure in unusual case.” grounds for (D.C.Cir.1992). However, two where the added). (emphasis Id. here, I juxtaposed they are as terms Next, expressed the view the Commission Congress to conclude that think it reasonable despite legal freedom to “that the courts’ rather than likely intended the former more not do depart guidelines, will from the interpretation. I do not think we the latter Particularly, the Com- very often.” Id. so judge uphold inclined to a district would be courts’ exercise envisioned that the mission in- aggravating that circumstances who held only in legal freedom would occur was, for fact that a defendant who cluded the constitute “rare occurrences” that would champion, not example, boxing would range of the cases outside the “unusual by severely punished a sentence within typical offenses for which fellows, and guideline range as his tenderer added). designed.” (emphasis lines were Id. time bars. therefore increased his behind explained case, further likely The Commission being That I think the more departure. kinds of interpretation suggested there are two different meaning first is the in which the Congress in- “The first involves instances specifically, Mason — guidance de- guidelines provide specific for aggravating cir- tended both by analogy numerical or parture or other encompass factors that reduce cumstances to suggestions.” culpability. non-numerical Id. Com- expand moral or the defendant’s departure kind of mission has illustrated this Having the narrower of the two Ma- chosen (the § alternatives, commentary 2G1.1 section give that alternative son prohibitive sexual comport governing prostitution or construction to with a rather broad conduct) expressly recommends a step analysis. which I think is the next what statute, departure eight levels where a is, I would downward having That examined the purpose not involved. Id. commercial was to see what the Com- then look departure, of this sort of of a examples Further characteristics defendant as the guidance the today. and the kind of does making guideline determi- offer us does Furthermore, particular there is relevance

nations, majority opin- are mentioned to the deference-worthy Commission’s deter- Maj. op. Chapter Part K of ion. 652-54. 5H1.4, conjunction § minations in taken in “Departures” 5 of the is entitled Part A guidelines. provides guidance to the courts for that Policy § (Physical Statement 5H1.4 sentencing process. step of the Section 5K1 Condition, Including Drug Depen- or Alcohol is entitled Assistance to Author- “Substantial Abuse), employs dence or language the usual 5K1.1, express- § ities.” In the Commission 5H1, § stating of the subsections under ly determined that “where a defendant has “physical appearance condition or ... is not provided prose- substantial assistance” to the ordinarily deciding relevant” in whether to cution, may depart “the court from the depart. exception It then makes for “ex- upon government. guidelines” motion of the traordinary physical impairment” (emphasis 5K1.2 Section declares the court added), “may be a reason” to to assist consider refusal authorities downward. See U.S.S.G. But 5H1.4. aggravating sentencing factor. Section then, tellingly, most it informs inus the third 5K2, subsections, in its several deals with “[d]rug sentence that dependence or alcohol potential aggravating several other or miti- or abuse is not a imposing reason for gating suggests, circumstances and guidelines.” sentence below the See id. “may impose a sentence guideline range. excep- outside” the Without statement, Based this tion, suggested grounds none of the for de- introductory chapter Commission in the de- parture deals with status of the defendant. [cjondition, “[pjhysical scribes [ijncluding punishment-worthiness Each deals with the [ajlcohol [ajbuse,” [djrug [dependence and culpability act—either because as one of the factors “the court cannot defendant, severity or the of the conse- grounds departure.” take into account as quences of his acts. added). (emphasis See U.S.S.G. 1A.4 That reject majority’s I understand but ca- is, recognizes the Commission that within aggrava- of certain of the listed tegorization categories those it has deemed “not ordinari- is, tors as “moral luck” —that the fact that ly making relevant” deci- death, 5K2.1, phys- the conduct resulted sion, condition,” “physical such as the nonde- 5K2.2, injury, § psychological ical extreme parture mandate of the third sentence of 5K2.3, loss, injury, property damage or norm, departure possi- 5H1.4 is the not the just § 5K2.5. It is this sort of “moral luck” ble under the second The Intro- sentence. always that has determined the extent of say simply “drug duction does not or alcohol society’s punishment retributive interest of dependence” ground; is a forbidden it ex- Society always pun- criminal conduct. has condition, pressly says physical including severely murder ished more than a similar drug dependence proper or a alcohol is not person assault that did not result in ground departure. (citing for See id. generally punished death. The law has as- three). 5H1.4, § U.S.S.G. sentence resulting bodily injury saults in serious more Not is this as to instructive the Com- severely than those that did not result in general interpretation mitigating mission’s bodily injury; high-valued serious theft of circumstances, suggest I if property {e.g.,grand larceny) severely more believing is correct in the “status” of property (e.g., petit than thefts low-valued illegal presence in analo- the United States is larceny); trespasses resulting damage in by gous to factors considered the Commis- property severely to the victim’s than sion, in then the one listed the third sentence trespasses solely that were invasions of the analogous. illegal § If 5H1.4 is the most property rights of the victim. To these treat status, aggravating presence is a then it is not a status similar factors as factors in a stature, age slight brought punishment surprising physical scheme is neither nor like personal through an invitation to no fault of the defendant’s consider chosen about Federal, year.”). each by the the United States assumed It rather a status own. is large conduct, regularly host a voluntary prisons not un- local state and own defendant’s abuse, during their dependence or individuals drug or alcohol number of these like See, engaging e.g., Makeig, by stays country. defendant’s John brought about in this 10,000 of these substances. Here Immigrants the use and abuse Jailed More than 1994, 1993, 24, has directed that those May the Commission Since Chroniole, Houston “reason[s] not “statuses” are 2,500 immigrants conduct-based illegal (approximately at 16 imposing a sentence below the for felony in Texas crimes housed accused of lines,” neither, think, compel we I should Weintraub, Daniel M. Wilson prisons); mitigator judges to consider as district Angeles Immigrants, Los on Inmate Sue brought illegal alienage, was status 1994, (16,700 illegal at A3 Apr. Times, illegal conduct. own about the defendant’s immigrants of felonies incarcerated convicted statement The Commission jails). in California sentence, 5H1.4, prison halfway house can serve as the or immigrants were in the United States basis for a downward because illegals and estimates of new October “extraordinary consequences are not these 300,000 500,000 annually.” degree.” v. Restre nature or United States Bates, Illegal Hall Im- Charles W. & Steve Cir.1993). (2d po, 644-45 Cost, migrants Conscience Pose Issues short, Washington Area, 25, 1994, and the Commission’s the statute Apr. Post, Accord, of it teach us that whatever interpretation Aik. Return the Huddled Masses, 7, 1994, aggravating mitigat- May takes to constitute an or at 25 ECONOMIST, factor, (“300,000 atypical, must illegal immigrants arrive in the factor must be or so eases, gener- illegally, only in unusual and must United States does not fit that occur de- that, scription, I would conclude if the dis- punishment-worthiness ally be related to the judge trict in fact determined that she did involved, whether for reasons of the offense authority not have the on that culpability retribution-sup- or tied to moral basis, then she was correct in that determi- portive consequence. the status of be- Since nation. alien, illegal ing an otherwise described as Therefore, entering remaining respectfully conduct of dissent.

APPENDIX notes its focus on So solitary punishment confinement offset the appearance may alone simply well be read as reduction in his sentence.” 966 F.2d at trying prevent along extension Lara 1496. Tucker, n. 7. See also United States v. 986 that dimension. The certainly Commission (8th Cir.1993) (extreme F.2d suggest did not vulner that a principle factor ability provide can cannot proper predicate for circumstance unless it b.e departure, culpability. bears on moral although court concludes that the especially defendant was prone not to victim Not does appear the Commission rea- ization); United Long, States v. sonably to understand “mitigating circum- (8th Cir.1992) 1277-78 (government ac stances” to include matters unconnected to cepts principle for extreme blameworthiness, imposed very has few vulnerability successfully but app contests its categorical qualify. limits on what lication). Guidelines state: assignment for community special Sex, make (Race, Ori- National 5H1.10 Section prisoner’s aof of a sentence last 10% Creed, and Socio-Economic Religion, gin, (Lack pro- aas Status), term, of Guidance that since court 5H1.12 observed Circumstances), community, reentry and Similar into Youth focuses vision (Physical Condi- § 5H1.4 sentence apply third it to intended may not have Congress Al- Drug Dependence tion, Including Id. at 645. We at all. deportable aliens last Abuse), sentence cohol taken Bureau of Prisons But the agree. Duress) (Coercion list sever- § 5K2.12 denying view, categorically a different into cannot take al factors confinement, community aliens deportable departure. With grounds account who meet to those the benefit granting however, exceptions, specific those Program State- requirements special limit the intend to does not ap- Prisons the Bureau of As ment 5100.4. mentioned or not factors, kinds ac- deportable aliens’ limit simply to pears could guidelines, that anywhere else community confinement cess departure in grounds constitute 3624(c) way limits their as it in the same case. unusual general- security facilities minimum access 4(b) (em- A, Manual, Pt. Ch. Guidelines sentence), (i.e., last 10% ly before added). Elsewhere, the Commission phasis offsetting departures possible think we ease particular ... a simply: “If states subject to the same for either should features, Act allows atypical presents analysis. guidelines and sen- depart from the court to range.” Id. prescribed both, tence outside the Res- applicable to a discussion following reason court offered trepo

Notes

notes explaining the third every may this reason that It well be for highly correlated that “substance abuse issue appeals to address the circuit court propensity to commit crime.” an increased collateral conse determined that has illegal alien is attained Since status may quences that attach to one’s “status” illegal only by committing an those who alien, including ineligibility deportable act, again suggest that the conduct- then confinement, cannot restrictive terms of less is the status described in 5H1.4 based appli justify departure from the a downward parallel. nearest sentencing guidelines range. See Unit cable ex- To the extent that the Commission’s Mendoza-Lopez, 7 F.3d ed States v. general press on the irrele- determinations Cir.1993) (10th (allegedly “harsh conse age the other characteristics vance of. imprisonment deportable quences of 5H1 listed above considered depar grounds not for downward aliens” are all, away they instruct us instruct us at Nnanna, ture); United States majority. In the the result reached (5th Cir.1993) (“Collateral consequences, age, including the usual “not case of after deportation or ineli such as the likelihood of caveat, ordinarily relevant” Commission impris gibility lenient conditions of for more only at expressly said it could be relevant onment, may following a that an alien incur (“Age one U.S.S.G. 5H1.1 extreme. for down federal conviction are not basis impose a sentence below the be a reason departure.”); States v. Alvarez- ward United applicable guideline range when the defen- Cir.1990) (alien- (9th Cardenas, 902 F.2d 734 infirm_”). elderly Insofar as dant is age grounds because cannot be to each of the stated as not deportable alien does lessen status as were “not or- other characteristics culpabili severity of the crime or defendant’s dinarily determining whether to relevant” therefor). Circuit, ty Even the Second range, sug- from the this majority’s Lara decision informs the whose warranting departure gests factor that a culpability unrelated to belief that conditions But, being extraordinary one. should be an “mitigating circumstances” within the can be engaged activity illegal alien criminal rejected meaning of 18 U.S.C. source, extraordinary. According to one inability proposition illegal alien’s that an offi- Immigration and Naturalization Service security time in a minimum to serve his illegal cials have “estimated that 3.2 million

Case Details

Case Name: United States v. Renford George Smith

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 8, 1994

Citation: 27 F.3d 649

Docket Number: 93-3013

Court Abbreviation: D.C. Cir.