United States Court of Appeals

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 Vafiades, 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
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TORRUELLA, Circuit Judge. Defendant-appellant Gerardo

Martín Meléndez-Torres appeals his conviction and sentence,

following a bench trial, for re-entering the United States after

deportation due to a manslaughter conviction, in violation of 8

U.S.C. § 1326(a). Specifically, Meléndez challenges (1) the

sufficiency of the evidence for his conviction, (2) the district

court's refusal to grant a downward departure from the Sentencing

Guidelines based on his "cultural assimilation" into American

society, and (3) the absence 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 submitted to a bench trial,

having waived his right to a jury trial, for the one-count

indictment of re-entering the United States after being deported

subsequent to an aggravated felony. The parties 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 Florida,
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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 trial, John Remsen, a special agent of the

Bureau 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 received, permission to re-enter

the United States.

The next testimony came from Frances González, a

Detention Enforcement Officer with the Department of Homeland

Security, Immigration Customs Enforcement (formerly the Immigration

and Naturalization 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 routine deportation

procedures. When a JPATS plane arrives, the prisoners -- who

number 50 to 120 per day -- are individually released from leg

irons, handcuffs, and belly chains and are boarded into government
The 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 levels for a prior

deportation after a criminal conviction 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.

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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 fingerprint, and the signature of the

officer who witnessed the alien's departure. González 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 that person did

exit the United States." Tr. 76.

On June 30, 2004, Meléndez was found guilty and sentenced

to 70 months' imprisonment and three years' supervised release. 1

In so holding, the court rejected Meléndez's argument that he never

left the United States, because although no witness testified to

actually 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
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sufficient to document that they saw this individual being deported

across the 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 extraordinary," that

Meléndez's "assimilation . . . in the criminal justice system

perhaps weighs against this request," and that 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 evidence 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
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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 innocence; that is, the

factfinder may decide among reasonable interpretations of the

evidence.'" 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 reasonable 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 Government 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 the
 González testified that the security for ensuring actual 2

deportation is so tight that no alien had tried to escape during

her eight years at Laredo.

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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

deportees, 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 the evidence adduced at

trial amply supports Meléndez's deportation. The 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 fact 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 any individual who personally witnessed Meléndez
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depart the United States, or of any photograph or videotape showing

the same -- is irrelevant. As we have repeatedly emphasized,

"circumstantial evidence, if it meets all the other criteria of

admissibility, is just as appropriate 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 urges 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 find no

inaccurate or misconceived perception of this element 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 entry, but 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
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inability 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 them 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 imposed under the now-advisory Guidelines should be

vacated in light of the Supreme Court's intervening decision in

United States v. Booker, 125 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, 257 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
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the court "base[s] its decision on an error of law," Woodward, 277

F.3d at 92-93. Thus, "we review 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 sentences, 18 U.S.C.

§ 3742(a). Id. at 765. Pursuant to § 3742(a), this Court

therefore continues to possess the same 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 States 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 did
 We 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 culture in a strong way and who, after deportation,

returned to the United 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.

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not evince an understanding that he was constrained from doing so).

Here, given that the sentencing judge believed that 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 review, however, whether a Booker error has

occurred. "The Booker error is that the defendant'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 the error was preserved below; for

example, "whether the defendant below argued that a guideline

application transgressed either Apprendi v. New Jersey, 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 category
 Meléndez'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 years 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 sentence. 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.

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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 rights." 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, the judge twice denied Meléndez's

requests for downward departures -- despite finding that he had

discretion to do so -- given "the assimilation that this defendant

has had over in the criminal justice system." The judge chided 4

Meléndez for "the lack of respect you have for the United States

laws as reflected both in your criminal record and your actions in

this case." The judge further stated that "[v]ery clearly you knew
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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 of the 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," Vázquez-Rivera, 407 F.3d at 489, we

find no Booker error.

C. Fast Track Program

Finally, Meléndez argues that the absence of a "fast

track" program 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 cases -- offer

defendants a sentence reduction, in the form of a downward

departure or some other benefit, in exchange for the defendant's
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waiver of certain procedural rights. See generally Erin T.

Middleton, Fast-Track to Disparity: How Federal Sentencing Policies

Along the Southwest Border are Undermining the Sentencing

Guidelines and Violating Equal Protection, 2004 Utah L. Rev. 827.

Section 5K3.1 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 defendant agree to 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).
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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.

However, given the absence of a suspect classification or the

implication of fundamental rights, along with the existence 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]uch a classification 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 that
We 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. Armenta-Castro, 227 F.3d 1255, 1257

(10th Cir. 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. Attorneys

institute fast 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) (holding 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").

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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

reasons 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 sentence and

conviction are affirmed.