2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 9-22-2003 

# U S A v . Jimine z P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4369

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w . v i l l a no va . e du/thir dc ir c uit_2003/264NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

No. 02-4369

UNIT ED STA TES OF AMERI CA,

v. CARLOS ENRIQUE JIMINEZ, a/ ka/ VI CTOR P EREZ- VIE RA, Ca rlos J ime nez ,

Appellant

On A ppeal from the Un ited States District Co urt for the Easte rn D istrict of P enns ylvania (D.C. Crimi nal No. 00-cr -00659) Distri ct Judge: Hon. Louis H. Poll ak

Submitte d Pursuant to Third Circ uit LAR 34.1(a)

September 15, 2003 BE FO RE : M CK EE , SM ITH and CO W EN , Circuit Judges (Fil ed September 22, 2003)

OPI NION

CO W EN , Circuit

Judge
.1 Th e ca ptio n in cor rectl y indic ates that t his s urn am e is “ Jim inez .” 2 Carlos Enri que Jimenez 1 appeals f rom the judgment

of conviction and sentence of th e Uni te d St at es Dis tric t Co ur t f orth e Ea st er n Di stri ctof P enn sy lv ani a. We wil l a ffi rm.

I. Jimenez was dis covered as astowaway aboar d a Turkish ves sel i n Philadelphia, Pennsyl vania. A citiz en and nati onal of the Dominican Republi c, he had pr eviousl y been deported f rom the U nited States after a co nviction for a crime of v iolence carrying a term of impris onment of at l east one y ear. On October 26, 2000, a

grand jury i ndicte d Jimenez for il legal reentry after deport ation i n violat ion of 8 U.S.C. § 1326(a) and ( b)(2). He pled gui lty to this off ens e on De cem ber 19, 2 000
. Jimenez appeared for a sentencing hearing on November 22, 2002. The prese ntenc e inve stigation repo rt stated th at Jime nez’s total of fens e leve l was 21 an d his crim inal h istor y categ ory w as V . Th e res ultin g se nten cing ran ge w as 7 0 to 87 m ont hs. Although not obj ecti ng to thes e calcul ations , Ji menez sought a downward depart ure on three g roun ds. H e first arg ued th at such a dep arture s hou ld be g ranted beca use o f his extraor dinaryefforts at rehabili tati on pursuant to Un ited Sta tes v. Sa lly , 116 F.3d 76 ( 3d Cir. 1997) . The defense s ubmitt ed documents i ndicating his parti cipation in s everal programs at the Federal Detention Center in Philadelphia aft er his offense. Jimenez also claim ed ex traord inary fam ily circum stance s. His w ife an d tw o son s prov ided e viden ce to2 Le tters f rom thes e ind ivid uals we re als o su bm itted to th e D istrict Co urt. 3 support t his sec ond basis of

departure. 2 Fina lly, he asserte d that, ev en if th ese se parate grou nds w ere reje cted, the Distric t Cou rt shou ld find that a c om binatio n of his rehabilit ative efforts and familycircumstances justi fied departing from the otherwise app licab le se nten cing ran ge. The D istri ct Court questioned whether any departure could be granted in thi s case on the basi s of eit

her the Sally doctri ne or Ji menez’s famil y ties. The Distri ct Court t hen discuss ed with the prosecut or the pol icy reasons s upporti ng the inc arcera tion of a person for an exten ded p eriod e ven th oug h he o r she w ill be de ported . Jimen ez reiter ated h is assertion that a com bination of the se factors justified a d eparture, and th e District Cou rt noted that it

underst ood this contention. Before rendering it s decis ion, t he District Court

summarized the assertions based

on ex traord inary eff orts at reh abilitation and f amily co nnec tions as we ll as the “ aggr egate argum ent” in w hich these tw o factors are “ taken toge ther.” App . at 31. Jimenez’s participation in severa l prison progra ms did n ot meet the req uisite “level of extrao rdinary rehabil itat

ive achi evement.” App. at 32. With respec t to hi s family ties , the Distri ct Court li kewise found that the s ympathe tic testi mony of famil y members fa iled to remove this c ase fro m th e oth erw ise a ppl icab le se nten cing ran ge.4

The Dis tric t C our

t t he n tur ne d t o J im en ez ’s ag gr eg at e a rg ume ntas wel l a s i ts own doubts as to the poli cy of i mprisoni ng for si x or seven y ears an i ndividualfacing event ual deportat ion. I t speci fical ly noted: [The defense counsel ] has urge d that t he two ingredi ents shoul d be put together, and tha t in comb ination they wou ld warran t a dow nwa rd departure. If Ithought t hat the re was a pers uasive bas is i n law for accedi ng to that argument, I would find i t veryappeali ng for the reason that , as Ihave explained in my colloquy w ith [the prosecu tor], I find it -- I find it a very diffic ult G over nm ent po licy to defe nd, to p lace so meb ody in p rison f or six or seven y ears as would be call ed for by the [Unit ed State s Sentenci ng] Gu ideli nes and then to d epo rt him
. App. at 33. It sugge sted t hat a l esser term of impri sonment could l ikewise adva nce the government’s objective of di scouragi ng ill egal re entryinto t his count ry . The District Court, however, found: [T]he G uidelines represe nting the Se ntencing C omm ission’s implementa tion of t

he responsibili ties delegat ed to it by Congres s, cal l for this -- t hese results. As I’ve said, I would be receptive to [the defense counsel’ s] argument

that s omehow in combinati on these two grounds for departure, eac h of w hich seem to be legally insufficient sepa rately, would -- would warrant a downward depart ure, but I find no bas is i n the Guidel ines for say ing so. App. at 34. It r eite rated t he ordinary nat

ure of Ji menez’s posi tive attempt s at rehabil itat

ion and his strong f

amilyconnecti ons, emphasi zing that thes e factor s did not rise to the l evel neces saryfor depart ure. The Dist

rict Court accor dingly

concluded: And so I find my self - - not at all happy about

it - - coming to t

he conclusi on that unde r the Guidel ines, it would for me be an abuse of discr etion to depart downwardly on eithe r -- on e ither

of the t wo bases urged by [the defens e counsel] , the post-of fense rehabi lit ation or

the speci al5

familyrelat

ionshi ps or to gr ant a vol untarydeparture on a combinati on of the tw o. Ap p. at 3 5-3 6. Jimenez was sentenced to a term of imprisonmen t of 70 months, supervised release for two y ears, and a $100.00 spec ial a ssessment . The District Court, i n discuss ing the right to appeal , addi tional ly noted: If the de fendant can per suade the Court of Appeals tha t there is an abus e of discr etion i n not depart

ing downward under the c ircumst ances or an e rror of law in my c onclusi on that t he aggregation of the two proposed grounds of downward departure, neithe r of which seem t o me separat ely applic able, that t he aggregation of the m did not st rengthen t

he case, then that may be ch al le nge d e it

he r a s a n a bus e o f d is cr etio n or as an erro r o f l aw. Ap p. at 3 6. Jim ene z ap pea led. II. Jimenez cont ends that

the Dist rict Court err oneouslybelie ved that it di d not possess t he authori ty to depart

downward based on a combinati on of factor s. We lack jurisdiction to review a district court’s discretionary refusal to gran t a dow nwa rd sentenci ng departure where the di stri ct court was aware of its power to order such a dep artu re. See, e .g., Un ited Sta tes v. M cQ uilkin , 97 F.3d 723, 729 (3d Cir. 1996). We do possess appellate jurisdi ction to consider the cl aim that

the dis tri ct court

committed l egal

erro r in re fus ing to d epa rt be cau se it b eliev ed th at it lac ked the le gal a uth ority to do s o. See, e .g., Un ited Sta tes v. G eorg iadis , 933 F .2d 12 19, 12 22 (3 d C ir. 1991 ); United Stat es v. Denardi , 892 F.2d 269, 271 (3d Cir. 198 9). “If the district court’s stated reason s are6

ambiguous -- so that

the rec ord does not

refle ct whether

the court ’s deni al is based on legal or disc reti onary grounds -- then the proper r emedy i s to ‘va cate the sentenc e and remand for the dist

rict court t o clari fy t

he basis for it s ruli ng.’” United Stat es v. St evens , 223 F.3d 239, 247 ( 3d Cir. 2000) (quoti ng United States v. Mumm ert , 34 F.3d 201, 205 (3d Cir . 199 4)). The Distri ct Court s uffici ently acknowledged it s power to depart on the ba sis of a combinati on of factor s. I t cle arlyconsider ed Jimenez’ s “aggregate argument. ” App. at 31. T he D istrict Co urt w as ap paren tly sympathe tic and recep tive to th is argu men t, and it also i ndicat ed that

Jimenez coul d chall enge on appeal i ts concl usion concerning aggr egatio n “as an ab use o f discr etion o r as an error o f law .” Ap p. at 36 . Ma ny of its comments, however, seem to rel ate t o its criticis m of the poli cy behi nd impris oning a person for

six or s even ye ars even t hough he or she wil l then be deported. Although discuss ed together with t he aggregation argument , such pol icy concerns do not appear related to the questi on of whether the combined effect of Jimenez’ s rehabi lit ative acti viti es and his familyresponsi bili ties supporte d a departure. Fi nding “no basi s in the Guideline s,”App. at

34, the Distri ct Court s pecifi call y ruled that it would be an abuse of discre tion to d epart o n the g roun ds of either th e reha bilitative ste ps or h is fam ily circumst ances “or to grant a vol untarydeparture on a combinati on of the t wo,” App. at 36. T he D istrict Co urt there fore e xercis ed its dis cretion ary and u nrev iewa ble au thority in dec linin g to dep art.7 III. For the for egoing rea sons, t he judgment of t

he District Court

entere d on December 10, 2002 willbe affirmed.

TO THE C LERK: Please fi le the foregoing opi nion.

/s/ Robert E. Cowen United States Circui t Judge