## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 12 2000 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MANUEL ARMENTA-CASTRO,

Defendant-Appellant. No. 99-4155

Appeal from the United States District Court

for the District of Utah (D.C. No. 98-CR-500-W)

Submitted on the briefs: Paul M. Warner, United States Attorney, Mark K. Vin cent, Assistant United States Attorney, Salt Lake City, Utah, for Appellee

. Larry E. Hazen, Attorney, Salt Lake City, Utah, forAppellant.

Before MURPHY, McKAY, and ANDERSON, Circuit Judges.

MURPHY , Circuit Judge.1 This is one of those “rare” cases in which we have jurisdiction to review a

district court’s refusal to depart downward. See United States v. Castillo , 140 F.3d 874, 888 (10th Cir. 1998). The district courtspecifically concluded that inter-district sentencing disparity like that at is sue in this case was not a legally valid basis for departure. See id. (“Where, because of a purely legal conclusion, a district court refuses even to consider whether a d efendant’s circumstances may support a departure, the Sentencing Reform Act give s us the power to review.”).

2 After examining the briefs and appellate record, th is panel determined unanimously that oral argument would not materiallyassist the determination of -2- Manuel Armenta-Castro pleaded guilty in federal dis trict court to illegally reentering the United States after a prior deportat ion. See 8 U.S.C. § 1326(a). As part of the plea agreement, he admitted his prior d eportation was subsequent to an aggravated-felony conviction and that he was, there fore, subject to the enhanced penalties set out in § 1326(b)(2)(B). Armenta-Castro requested that the district court depart downward from the sentencing range setout in the United States Sentencing Guidelines (“U.S.S.G.”) on the basis, inter alia , of a sentencing disparity that exists among federal districts with respect to illegal reentry cases. In particular, Armenta-Castro asserted that federal prosecutors in several districts were allowing defendants to plead guilty to lesser charges, namely improper entry charges under 8 U.S.C. § 1325(a), in exchange for aguilty plea, while the United States Attorney in Utah “vigorously prosecutes suchoffenses and exacts maximum punishment.” The district court rejected A rmenta-Castro’s request, holding that it lacked the power to depart on this basis. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 129 1, 1 this court affirms

. 2this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). A ccordingly, we

entered an order on June 23, 2000, providing that t he case would be submitted without oral argument.

3 To be clear, Armenta-Castro does not contest that h e violated § 1326(a) and was eligible for the enhanced penalties set outin § 1326(b)(2)(B). Nor does he contest the district court’s calculation of his sentencing range pursuant to the Sentencing Guidelines. Instead, his sole assertionon appeal is that the district court erred as a matter of law in determining that it was without power to depart on the basis of inter-district inconsistencies in t he charging and plea bargaining of § 1326 cases. -3- This case presents the court with the following nar row question: does the existence of sentencing disparities as to illegal r eentry cases among the various federal districts, where such disparities arise fro m varying charging and pleabargaining policies of the individual United States Attorneys, provide an appropriate basis for a downward departure at sente ncing? 3 In accord with the only two circuits to have considered this issue, we answer the question in the negative. See United States v. Banuelos-Rodriguez , 215 F.3d 969, 978 (9th Cir. 2000) ( en banc ) (“We hold that a district court may not grant a d ownward departure from an otherwise applicable Guideline se ntencing range on the ground that, had the defendant been prosecuted in another federal district, the [d]efendant may have benefited from the charging or plea-bargai ning policies of the United States Attorney in that district.”); United States v. Bonnet-Grullon , 212 F.3d 693, 710 (2d Cir. 2000) (“[T]he district court correctly ruled that it lacked the authority to grant downward departures solely in or der to match lower sentences-4-

imposed in the Southern District of California as aresult of the exercise of prosecutorial discretion in that district to bring charges under § 1325(a) instead of § 1326.”). Armenta-Castro notes that a primary goal of the Sen tencing Reform Act of 1984 was to reduce “unwarranted sentencing disparit ies among defendants with similar records who have been found guilty of simil ar conduct.” 28 U.S.C. § 991(b)(1)(B). In order to achieve that goal, Armen ta-Castro asserts that district courts must be empowered to rectify sentencing disp arities that arise solely because of the disparate charging and plea bargaini ng practices employed by the various United States Attorneys in the context of i llegal reentry prosecutions. Furthermore, Armenta-Castro asserts that there is n othing in either the Sentencing Guidelines or the policy statements and official co mmentary by the Sentencing Commission precluding a downward departure in these circumstances. In contrast to Armenta-Castro’s assertions, this co urt concludes that the governing provisions of the United States Code and the Sentencing Guidelines categorically proscribe the consideration of senten cing disparities flowing from the exercise of prosecutorial discretion in chargin g and plea bargaining practices. See Bonnet-Grullon , 212 F.3d at 698-99, 707. “By statute, a districtcourt may not depart from an applicable Guideline range ‘unle ss the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not-5-

adequately taken into consideration by the Sentenci ng Commission in formulating the guidelines that should result in a sentence dif ferent from that described.’” Banuelos-Rodriguez , 215 F.3d at 973 ( quoting18 U.S.C. § 3553(b)) . Like the Ninth Circuit, this court fails to see how the deci sion of an out-of-district federal prosecutor to pursue a given prosecutorial strategyin dealing with § 1326 violators in that district can constitute a “mitigating circumstance” as to ArmentaCastro or his crime. See id. ; see also Bonnet-Grullon , 212 F.3d at 706 (“[T]he departure inquiry must focus on the facts of the ca se in which the departure is sought.”). The discretionary actions of out-of-dis trict prosecutors simply do not speak to Armenta-Castro’s individual culpability; t hey do not elucidate his particular personal history or the circumstances su rrounding his commission of the crime in any way. See Black’s Law Dictionary 1002 (6th ed. 1990) (defini ng “mitigating circumstances” as circumstances which “ do not constitute a justification or excuse for the offense in question , but which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability ” (emphasis added)). Because the actions of out-of -district federal prosecutors do not bear on Armenta-Castro’s moral c ulpability, those actions cannot amount to mitigating circumstances allowing the district court to depart downward. See 18 U.S.C. § 3553(b); see also U.S.S.G. § 5K2.0 Commentary (“In the absence of a characteristic or circumstance that distinguishes a case as-6-

sufficiently atypical to warrant a sentence differe nt from that called for under the guidelines, a sentence outside the guidelines range is not authorized.”). Even assuming that inter-district policy difference s in the handling of § 1326 prosecutions could qualify as mitigating cir cumstances technically empowering the district court to depart downward un der 18 U.S.C. § 3553(b), this court agrees with the Second and Ninth Circuits that a departure is still prohibited under the Sentencing Guidelines themselves. See Banuelos-Rodriguez , 215 F.3d at 973-76; Bonnet-Grullon , 212 F.3d at 706-09. Without repeating at length the helpful and thorough analysis contained in those tw o opinions, this court simply notes that the heartland analysis set out in the Se ntencing Guidelines is highly case and fact specific, comparing specifically “the particular facts of the case [at hand] against the class of cases typically within t hat guideline.” Bonnet-Grullon , 212 F.3d at 700; see also Banuelos-Rodriguez , 215 F.3d at 973-74. Like the Second and Ninth Circuits, we do not believe that t he actions of the various United States Attorneys around the country in formu lating prosecution strategies to deal with the heavy caseload of illegal reentry cases adds anything at all to a heartland analysis. See Banuelos-Rodriguez , 215 F.3d at 973-74; Bonnet-Grullon , 212 F.3d at 698-701, 706-07. Furthermore, interjec tion of this issue into sentencing proceedings would mandate cumbersome andinvolved evidentiary hearings in every case, see Banuelos-Rodriguez , 215 F.3d at 974, an approach4 This court recognizes that the Sentencing Commissio n has indicated that a

“sentencing court may control any inappropriate man ipulation of the indictment through use of its departure power.” U.S.S.G. Ch. 1. pt. A, subpt. 4(a). This language arises, however, in the Sentencing Commiss ion’s discussion of its decision to implement a “charge offense” system ins tead of a “real offense” -7- clearly at odds with the Supreme Court’s view of de parture proceedings. See Koon v. United States , 518 U.S. 81, 98-99 (1996). The ultimate result w ould be to turn on its head the Sentencing Guidelines mandate that departures be “highly infrequent.” See Banuelos-Rodriguez , 215 F.3d at 974 ( quotingU.S.S.G. Ch.1, pt. A, subpt. 4(b)). As a final matter, this court notes that the Senten cing Commission specifically contemplated the impact of plea bargai ning and charging practices of federal prosecutors in drafting the Guidelines and declined to implement any major changes in the process despite the arguments of some commentators that the Sentencing Guidelines “failed to control and li mit plea agreements [and thus] leave untouched a ‘loophole’ large enough to undo t he good that sentencing guidelines would bring.” U.S.S.G. Ch.1, pt. A, sub pt. 4(c). Instead, the Sentencing Commission promulgated a policy statement providing that although a court may reject a plea agreement dismissing certai n charges if the remaining charges do not reflect the seriousness of the actua l offense behavior, the Sentencing Guidelines do “not authorize judges to i ntrude upon the charging discretion of the prosecutor.” See id. § 6B1.2 & Commentary. 4system. In so choosing, the Sentencing Commission recognized that one problem

with a “charge offense” system is “the potential itaffords prosecutors to influence sentences by increasing or decreasing the number of counts in an indictment.” Id. Nevertheless, the Sentencing Commission recognized that the defendant’s actual conduct (that which the pros ecutor can prove in court) imposes a natural limit upon the prosecut or’s ability to increase a defendant’s sentence. Moreover, the Com mission has written its rules for the treatment of multicount c onvictions with an eye toward eliminating unfair treatment that might flow from count manipulation. Id. It is abundantly clear that the Sentencing Commis sion’s policy statements regarding count manipulation by prosecutors is not implicated in this case. There is absolutely no indication that the prosecutor in this case structured the charges against Armenta-Castro in an effort to manipulate t he sentencing guidelines. -8- A holistic reading of the Sentencing Guidelines cle arly demonstrates that the [Sentencing] Commission considered the effects that the exercise of prosecutorial discretion has on the uniformity o f sentences. The Guidelines allow sentencing courts to take certain limited actions in narrow circumstances to address a prosecutor’s inap propriate exercise of discretion. In all other circumstances , the Guidelines do not give courts the authority to interfere with a p rosecutor’s exercise of discretion in charging and plea bargaining by de parting from an applicable Guidelines range. Banuelos-Rodriguez , 215 F.3d at 975; see also United States v. Thomas , 884 F.2d 540, 544 (10th Cir. 1989) (“Thomas contends furtherthat, under the guidelines, the prosecutor can control the length of a defendan t’s sentence by management of the charging of offenses and plea bargaining practi ces. Thomas does not show, however, how his rights were violated in this way.” ). Because Armenta-Castro has not argued “bad faith or discrimination on the part of the prosecutor at any time during the criminal proceedings,” Thomas , 884 F.2d at 544, the Sentencing5 As noted by the Ninth Circuit,

the Guidelines have sought to achieve uniformity in sentencing only by attempting to equalize the sentences of those wh o have engaged in similar criminal conduct, have similar criminal bac kgrounds, and have been convicted of the same offense. The unifo rmity the Guidelines sought was designed to come from the spe cific provisions of the Guidelines itself, not from giving judges a broad discretion to ignore the Guidelines and increase [or decrease] se ntences based on extraneous factors such as the punishment meted outto those convicted of other offenses. United States v. Banuelos-Rodriguez , 215 F.3d 969, 974 (9th Cir. 2000) ( en banc ). -9- Guidelines prohibit the district court from interfe ring with the prosecutor’s discretionary charging and plea bargaining decision s via the avenue of departure. 5 The judgment of the United States District Court fo r the District of Utah that it is without power to depart from the otherwi se applicable sentencing range based on inter-district differences in the charging and plea bargaining decisions of the various United States Attorneys is hereby AFFIRMED

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