# UnitedStates C ourt of App eals For the First Circuit

No. 04-1914 UNITED STATES OF AMERICA, Appellee,

v. GERALDO MARTÍN MELÉNDEZ-TORRES, a/k/a GERALD MELÉNDEZ, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]

Before Torruella, Lynch and Howard, Circuit Judges.

Marvin H. Glazier, with whom Vafia d e s , Brountas & Kominsky, were on brief, for appellant. Margaret D. McGaughey, Assistant United States Attorney, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

August 25, 2005-2- TORRUELLA, Circuit Judge. Defendant-appellant Gerardo Martín Meléndez-Torres appeals his conviction and sentence, fo l l o w i n g a b e n c h t r i a l , f o r r e - e n t e r i n g t h e U n i t e d S t a t e s after deportation due to a manslaughter conviction, i n violation of 8 U.S.C. § 1326(a). Specifically, Meléndez challenge s ( 1) the suff i c i e n c yo ft h e e v i d e n c e f o rh i s c o n v i c t i o n , ( 2 ) t h e d i s t rict court's refusal to grant a downward departure from the Sentencing Guidelines based on his "cultural assimilation" i nto American society, and (3) t h e a b s e n ce of a "fast track" program in the District of Maine to process immigration cases. After careful review, we affirm.
I

On August 18, 1998, Meléndez -- a Mexican citizen who had lived in the United States from the age of three and who claims a Maine residency -- was ordered deported due to a 1997 manslaughter conviction in Florida. He was flown to Laredo, Texas to consummate the deportation process on January 11, 2001, but was subsequently found in Bucksport, Maine more than a year later, on May 30, 2002.

On June 12, 2003, Meléndez subm i t t e dto a bench trial, having waived his right to a jury trial, for the one-count indictment of re-ente r i n g the United States after being deported subsequent to an aggravated felony. The pa r t i e s stipulated, and the court accepted, that Meléndez was an "alien" under 8 U.S.C. § 1326(a)(2), that he was convicted of manslaughter in Fl o r ida,-3-

that he was on board a Justice Prisoner Alien Transportation System (JPATS) flight that arrived in Laredo, Texas on January 11, 2001, and that he was found in Bucksport, Maine on May 30, 2002.

During the tria l , John Remsen, a special agent of the
Bu r eau of Immigration and Customs Enforcement, testified that Meléndez's "A file" -- which records every contact an alien has with the immigration service -- included a Form I-205 warrant of removal and deportation reflecting Meléndez's deportation. The file also contained a Form I-170 , a deportation case checklist, showing that a Form I-294 -

- which gives the reasons for the deportation and the number of years an alien must wait before returning to the country legally -- had been given to Meléndez, although such form could not found. Remsen also testified that Meléndez never applied for, nor r e ceived, permission to re-enter the United States.

The next testimony came from Frances González, a Detentio nEnforcement Officer with the Department of Homeland Security, Immigration Customs Enforcement (formerly the Immigration and Natur a l i z a tion Service). González, who had worked at the Laredo, Texas port of entry for eight years and was on duty on January 11, 2001, recounted the agency's r o u t i ne deportation procedures. When a JPATS plane arrives, the prisoners -- who number 50 to 120 per day -- are indiv i du ally released from leg irons, handcuffs, and belly chains and are boarded into governmentThe court calculated Meléndez's total adjusted offense level to 1 be 24 -- with a base offense level of 8 for violation of 8 U.S.C. § 1326(a), see U.S.S.G. § 2L1.2(a), plus 16 level s f or a prior deportation after a criminal c o n v iction on an aggravated felony, see U.S.S.G. § 2L1.2(b)(1)(A). Combined with Meléndez's Criminal History Category of III, the applicable Guideline range was 63 to 78 months. -4- buses or vans under the supervision of United States Marshals and Immigration and Customs officers. The prisoners are then transported to a secure area with barriers on all sides, placed into groups of five, and visually observed as they cross the border

on foot. Afterward, the officers complete individual I-205 forms, which record the name of the transporting officer, the means of arrival, the port, date, and manner of removal, the alien's photograph and right index f i n g e rprint, and the signature of the officer who witnessed the alien's departure. Gon z á l ez testified that she had signed Meléndez's I-205 form on January 11, 2001, and that although she could not remember specific events of that day, she "would not sign a form if [she] was not sure th a t p e r s on did exit the United States." Tr. 76.

On June 30, 2004, Meléndez was found guilty and sentenced
to 70 months' imprisonment and three years' supervis e drelease. 1 In so holding, the court rejected Meléndez's argument that he never left the United States, because a l t h o u gh no witness testified to
actua l l y seeing him leave the country, "the practice of signing [the relevant paperwork] after seeing all of the people [who are being deported] go across without specifically looking for one is-5-

sufficient to document that they saw this individual being deported

across t h e border." Tr. 91. The court also denied Meléndez's motion for a downward departure based on "cultural assimilation," stating that Meléndez's case is "not extra o r d inary," that
Me l é n d e z's "assimilation . . . in the criminal justice system perhaps weighs against this request," and t h a t cultural assimilation is similar to "family ties responsibility," which is a discouraged factor. S. Tr. 11-12. Finally, the court rejected Meléndez's argument that the absence of a "Fast Track" program in the District of Maine forms a "basis for a downward departure[,] constitutional or otherwise." Id. This appeal follows.
II A. Sufficiency of the Evidence

Meléndez first argues that the evid e n c e presented at trial was insufficient to support a conviction for illegal re-entry after deportation subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)(2)(b)(2) and § 1101(a)(43)(F). We disagree. We review challenges to the sufficiency of the evidence following bench trials "de novo, evaluating whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Grace, 367 F.3d 29, 34 (1st Cir. 2004) (internal quotation marks and citations-6-

omitted). Moreover, "we draw all reasonable evidentiary inferences in harmony with the verdict and resolve all issues of credibility in the light most favorable to the government." Id. Thus, and we now emphasize, "'[t]he evidence may be entirely circumstantial, and need not exclude every hypothesis of i n nocence; that is, the factfinder may decide among reaso n able interpretations of the evide n c e . ' " United States v. Scantleberry-Frank, 158 F.3d 612, 616 (1st Cir. 1998) (quoting United States v. Batista-Polanco, 927 F.2d 14, 17 (1st Cir. 1991)).

In the instant case, the court -- to convict Meléndez of violating 8 U.S.C. § 1326(a)(2) and (b)(2) -- must have necessarily found that the Government proved beyond a re a s onable doubt that Meléndez (1) was an alien, (2) whose deportation was subsequent to a conviction for commission of an aggravated felony, and (3) that he entered or attempted to enter or was later found in the United States, (4) without the express consent of the Attorney General for such entry. Scantleberry-Frank, 158 F.3d at 616 (citing 8 U.S.C. § 1326). Meléndez's sole sufficiency challenge is directed at the third element: mainly, that the Gov e r n ment offered no conclusive proof that Meléndez actually left the country and was therefore not "deported." See United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir. 2001) (holding that an alien cannot be said to have been deported and to have re-entered when the alien never left theGonzález testi f i e d that the security for ensuring actual 2 deportation is so tight that no alien had tried to e s c a p e during her eight years at Laredo. -7- country at all). Specifically, Meléndez argues that González's inability to remember the specific events of January 11, 2001 -- including the day of the week, the weather, her specific duties that day, where she was positioned, and the actual number of de p o r t e es, as well as her inability to recognize Meléndez and whether she actually saw him cross the border -- renders insufficient the Government's proof that Meléndez actually left the country. The missing I-294 form also allegedly detracts from the sufficiency of the evidence regarding actual deportation. We disagree. To the contrary, we find that t he evidence adduced at trial amply supports Meléndez's deportation. T he routine procedures recounted -- including the significant physical restraints on the deportees, the close monitoring by U.S. Marshals and Immigration and Customs officers, the physical barriers to the port of entry, the close surveillance of deportees as they walk across the border in groups of five, and the Form I-205 checklist 2 indicating that the officer witnessed the deportee cross the border -- could lead a rational trier of f act to conclude, beyond a reasonable doubt, that Meléndez was actually deported. See Grace, 367 F.3d at 34. The absence of direct evidence -- e.g., the lack of testimony of a n y individual who personally witnessed Meléndez-8-

depart the United States, or of any photograph or videotape showing the same -- is irrelevant. As we have repeatedly emphasized, "circums t a ntial evidence, if it meets all the other criteria of admissibility, is just as appropr i a te as direct evidence and is entitled to be given whatever weight the [fact finder] deems it should be given." United States v. Gamache, 156 F.3d 1, 8 (1st Cir. 1998). In fact, "[t]he evidence [supporting the conviction] may be entirely circumstantial." Scantleberry-Frank, 158 F.3d at 616. Meléndez nonetheless u r g es us to follow the Ninth Circuit's holding in Romo-Romo, 246 F.3d at 1272, which we find inapposite. There, the issue pertained to the propriety of a jury instruction, not the sufficiency of the evidence at a bench trial. Id. at 1274 (district court erroneously instructing the jury that "[a]n alien who is subject to a lawful deportation order
. . ., but who never actually enters Mexico because of his own guile or deceit, may be considered to have been deported"). We f i n d no inaccurate or misconceived perception of this e lement of deportation in the instant case. Moreover, unlike the defendant in Romo-Romo, Meléndez presents no evidence that he actually escaped from the port of e n t r y , b u t merely urges the court to speculate about such an escape. Id. at 1274. We refuse to do so now.

Meléndez's remaining challenges -- Remsen's inability to find the Form I-294 in Meléndez's "A file," as well as González's-9-

i n a b i l ity to recall seeing Meléndez actually cross the border --also falter because these are credibility issues for the factfinder to resolve; we will not second-guess t h e m on appeal. See Grace, 367 F.3d at 34.

For the reasons stated, we reject Meléndez's challenge to the sufficiency of the evidence for his conviction. B. Sentencing

Meléndez further argues that the district court erred in refusing to depart downward from the Sentencing Guidelines based on his cultural assimilation into American society, and that the sentence impose d u n d er the now-advisory Guidelines should be vacated in light of the Supreme Court's intervening decisi o nin United States v. Booker , 1 2 5 S. Ct. 738 (2005). These arguments also fail. It has long been established that "a sentencing court's discretionary refusal to depart is [generally] unreviewable." United States v. Sánchez, 354 F.3d 70, 76 (1st Cir. 2004); see also United States v. Woodward, 277 F.3d 87, 92-93 (1st Cir. 2002); United States v. Teeter, 25 7 F . 3d 14, 30 (1st Cir. 2001); United States v. Morrison, 46 F.3d 127, 130 (1st Cir. 1995); United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994). Narrow exceptions do exist, such as when the sentencing court "bases its decision on a view that it lacks the legal authority to consider a departure," United States v. Mejía, 309 F.3d 67, 69 (1st Cir. 2002), or when-10-

the court "base[s] its decision on an error of law," Woodward, 277 F.3d at 92-93. Thus , " w e r eview de novo a district court's determination of its authority to depart, but lack jurisdiction to review a discretionary decision not to depart from the Sentencing Guidelines." Mejía, 309 F.3d at 70 (emphasis added).

Booker, however, has since made the Sentencing Guidelines advisory, giving district courts substantially more discretion in sentencing above or below the Guideline range. Booker, 125 S. Ct. at 767. Although Booker excised the statutory provision of the Sentencing Reform Act that provides the standard of review for sentences on appeal, 18 U.S.C. § 3742(e), it left intact the provision pertaining to appellate review of sentenc e s , 18 U.S.C. § 3742(a). Id. at 765. Pursuant to § 3742(a), this Court therefore continues to possess th e s ame jurisdiction to review Guidelines sentences as before Booker, and accordingly, also still lacks jurisdiction to review a sentencing court's refusal to depart downward based on its belief that the defendant's circumstances fail to warrant such departure. See United States v. Kornegay, 410 F.3d 89, 98 (1st Cir. 2005) (holding that if "the defendant's claim is only that the district court unreasonably declined to exercise its discretion to grant a departure, we may not review it " ) ; see also United Sta t e s v. Monteiro, --- F.3d ---, 2005 WL 1869918 at *11 (1st Cir. Aug. 9, 2005) (declining to review a sentencing judge's refusal to grant a downward departure where the judge didWe nonetheless note the difficulty of Meléndez's position, who, 3 at the time of sentencing, had lived in the United States for 52 years, has a wife and four children in the United States, and can neither speak nor write Spanish. We recognize that the Ninth Circuit allows "cultural assimilation [as] a proper basis for granting a downward departure in 8 U.S.C. § 1326 cases for persons brought to the United States as children, who had adapted to American cul t u re in a strong way and who, after deportation, returned to the U n i ted States for cultural rather than economic reasons." United States v. Rivas-González, 384 F.3d 1034, 1044 (9th Cir. 2004) (citing United States v. Lipman, 133 F.3d 726 (9th Cir. 1998)). Nonetheless, given our lack of jurisdiction, we need not address this issue at the current juncture. -11- not evince an understanding that he was constrained from doing so). Here, given that the sentencing judge believe d t h a t he had "discretion for downward departure on th[e] [cultural assimilation] basis," but chose not to do so given the defendant's circumstances, we find ourselves without jurisdiction to review that refusal. 3

We still re v i e w, however, whether a Booker error has occurred. "The Booker error is that the defe n d ant's Guidelines sentence was imposed under a mandatory system." United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005). In reviewing such error, we examine whether t h e error was preserved below; for example, "whether the defendant below argued that a guideline application transgressed either Apprendi v. New Jer s e y , 530 U.S. 466 (2000), or Blakely v. Washington, 542 U.S. 296 (2004)." United States v. Martins, --- F.3d ---, 2005 WL 1502939 at *11 (1st Cir. June 27, 2005). Here, given that Meléndez argued, and the Government agreed, to reduce Meléndez's criminal history categoryMeléndez's Presentence Investigation Report (PSI) indicates: (1) 4 3 points for a 1998 Indiana conviction for possession of a schedule II substance that produced a ten-year sentence that was subsequently reduced to six y e a r s with four years suspension and two years probation; and (2) 3 points for a 1997 Florida conviction for homicide/manslaughter that produced a ten-year s e ntence. No points were assigned to two convictions for auto theft, a 1977 drug and weapons offense, a 1977 conviction for possession of a stolen vehicle, a 1982 conviction for bail jumping, or a conviction for unlawful acquisition of a firearm. There are also charges with unknown dispositions, including a 1970 aggravated assault, a 1970 unlawful use of a weapon, a 1976 possession of a controlled substance, and a 1977 theft and possession of heroin. -12- because of Blakely, we will assume that the Booker error is preserved.
In preserved error cases, "the government has the burden of proving beyond a reasonable doubt that the error did not affect the defendant's substantial rig h ts." United States v. Vázquez-Rivera, 407 F.3d 476, 489 (1st Cir. 2005) (internal citations omitted). Under this "extremely difficult, but not impossible, standard," id. at 489-90, "we must be convinced that a lower sentence would not have been imposed had the Guidelines been advisory," id. at 489.

In the instant case , t he judge twice denied Meléndez's requests for downward departures -- despite f i nding that he had discretion to do so -- given "the assimilation that this defendant has had over in the criminal ju s t i c e system." The judge chided 4 Meléndez for "the lack of respect you have for the Un i t e dStates laws as reflected both in your criminal record and your actions in this case." The judge further stated that "[v]ery clearly you knew-13-

that you were deported and you figured if you came back and were captured you would serve a light sentence, the worse that happens is they would send you back again as many people have gone through." Thus, although the judge said that "I am not . . . going to sentence you to the high end of the guideline range, that is reserved for people worse than you," he also chose not to sentence Meléndez at the lower range, despite his discretion to do so. See United States v. McLean, 409 F.3d 492, 505 (1st Cir. 2005) (denying Booker remand and noting that since defendant "was sentenced in the middle o f t he guideline range, rather than at the bottom, and so the district court could have given him a lower sentence under the old regime . . . speaks volumes"). Given that we are "convinced that a lower sentence would not have been imposed had the Guidelines been advisory," Váz qu ez-Rivera, 407 F.3d at 489, we find no Booker error. C. Fast Track Program

Finally, Meléndez argues that the absen c e of a "fast
tra c k " p rogram in the district of Maine violated his equal protection rights. We are not convinced.

Fast track programs -- which were initially established in federal district courts along the southwestern United States to accommodate the large number of immigration cas e s -- offer defendants a sentence reducti o n , i n the form of a downward departure o r s ome other benefit, in exchange for the defendant's-14-

waiver of certain procedural rights. See generally Erin T. Middleton, Fast-Track to Disparity: How Federal Sentencing Policies Alon gt h e S o u t hw e s tB o r d e ra r e U n d e rm i n i n gt h e S e n t e n c i ng Guidelines and Violating Equal Protection, 2004 Utah L. Rev. 827.
Se c t i o n5K3.1 of the Guidelines provides: "Upon motion of the Government, the court may depart downward not more than 4 levels pursuant to an early disposition program authorized by the Attorney General of the United States and the United States Attorney for the district in which the court resides." U.S. Sentencing Guidelines Manual § 5K3.1 (2004) (emphasis added); see also Pub. L. 108-21 § 401(m)(2)(B), 117 Stat. 650 (2003). These programs -- promulgated by the Sentencing Commission pursuant to the 2003 PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003) -- require, at a minimum, that the defendan t a g r e e t o the factual basis and waive the rights to file pretrial motions, to appeal, and to seek collateral relief (except for ineffective assistance of counsel). Memorandum from Attorney General John Ashcroft, "Department Principles for Implementing an Expedited Disposition or Fast-Track Prosecution Program in a District" (July 28, 2003). Moreover, these programs are authorized only when they are clearly warranted by local conditions within a particular district. Memorandum from Attorney General John Ashcroft to All Federal Prosecutors, "Department Policy Concerning Charging and Prosecuting of Criminal Offenses" (Sep. 23, 2003).-15- In the instant case, Meléndez argues that the absence of a fast track program in Maine violated his equal protection rights because similarly situated defendants in fast track jurisdictions could avail themselves of a four-level downward departure.
Ho w e v e r , given the absence of a suspect classification or the implication of fundamental rights, along with t h e e x istence of a rational basis underlying the program, we disagree.

"It is well established that a challenged classification that does not involve a suspect class or impinge upon fundamental rights is accorded a strong presumption of validity." Almon v. Reno, 192 F.3d 28, 31 (1st Cir. 1999) (citing Heller v. Doe, 509 U.S. 312, 319 (1993)). Meléndez cites no case law holding that the distinction between aliens sentenced in fast-track versus non-fasttrack jurisdictions constitutes a suspect classification, nor does he offer support that the resulting inequity involves fundamental rights. Thus, "[s ] u c h a c l assification must be upheld if it is rationally related to a legitimate governmental purpose
. " Id. (citing Heller, 509 U.S. at 320).

Here, the U.S. Attorney General and the U.S. Attorney for the District of Maine are in the best position to evaluate whether the local conditions in Maine warrant such a program. They could very well find that the low volume of crimes involving illegal aliens in Maine, as compared to southwestern states, enable them to put their resources to better use. For example, they may find thatWe also note that at least three circuits have held that "where 5 [sentencing] disparities arise from varying charging and plea-bargaining policies of the individual United States Attorneys," it is inappropriate for a judge to grant a downward departure. United States v
. A r m enta-Castro, 227 F.3d 1255, 1257 (10th C i r . 2000). See also United States v. Banuelos-Rodríguez, 215 F.3d 969, 978 (9th Cir. 2000) (en banc ); United States v. Bonnet-Grullón, 212 F.3d 692, 710 (2d Cir. 2000). In any event, we could find no Constitutional mandate that all U.S. A t t orneys institute f a s t track programs and offer them to all defendants, particularly since Meléndez does not allege that the Government had an impermissible motive in deciding not to implement the program. Cf. Wade v. United States, 504 U.S. 181 (1992) (h o l d ing that a prosecutor has discretion to make a downward departure motion under U.S.S.G. § 5K1.1, and that the prosecutor's decision not to file a motion is reviewable only if defendant "makes a substantial threshold showing of improper motive"). -16- the absence of the program could permit swifter adjudication with corresponding benefits to aliens, or that it could achieve greater deterrence through harsher sentences. We find that these proffered

r e a s ons constitute a "reasonably conceivable set of facts that could provide a rational basis for the classification," id. (citing Heller, 509 U.S. at 320), and as such, no equal protection violation exists. 5
III

For the reasons stated, the defendant's sen t e n c e and conviction are affirmed
.