United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-3935 

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United States of America, *

*

Appellant, *

*

v. *

*

Nolberto Lopez-Salas, *

*

Appellee. *

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Appeals from the United States

No. 00-3967 District Court for the

___________ District of Nebraska.

United States of America, *

*

Appellant, *

*

v. *

*

Jesse V. Ramos, also known as *

Eleasar Andrade, *

*

Appellee. *

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Submitted: June, 13, 2001

Filed: September 17, 2001 

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Before MURPHY, HEANEY, and BEAM, Circuit Judges.

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BEAM, Circuit Judge.

Appellees were convicted of unrelated drug offenses. Before sentencing, the

Immigration and Naturalization Service (INS) filed a detainer against each, indicating

they would be deported upon completion of their sentences. The district court departed

downward because the appellees would not be eligible to spend the last six months of

their sentence in a half-way house, nor would they be eligible for early release upon

successful completion of a drug treatment program. The government appeals the

departure decision. We reverse.

I. BACKGROUND

Lopez-Salas was born in Mexico. After completing high school and medical

training, he entered this country illegally. He was arrested on multiple drug charges

and ultimately pled guilty to possession with intent to distribute cocaine and

methamphetamine. Following his arrest, the INS filed a detainer designating him as an

alien subject to deportation at the end of his prison sentence.

Ramos was also born in Mexico, but his parents brought him to the United States

when he was five, and he has lived most of his life in this country. He has previously

served prison sentences and has been deported twice. His current conviction is

pursuant to a guilty plea on a charge of intent to distribute methamphetamine. Like

Lopez-Salas, the INS filed a detainer designating Ramos as an alien subject to

deportation at the end of his prison sentence.

At sentencing, the district court received evidence concerning the Bureau of

Prison's (BOP) policies toward deportable aliens. Generally, although deportable
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aliens may participate in most prison programs such as drug treatment or work, they are

not eligible for several statutory benefits. Deportable aliens are not eligible for

assignment to minimum security facilities, nor for up to one year early release upon

completion of a drug treatment program, nor for serving the final ten percent (up to six

months) of their sentence in a half-way house or other community confinement. Based

on these latter two factors, the district court, in separate sentencing hearings, concluded

the appellees were denied benefits solely on the basis of their status as deportable

aliens. Finding this effect was not contemplated in the United States Sentencing

Guidelines, the court granted a one-year downward departure to both Ramos and

Lopez-Salas. Before the departure, Ramos was subject to a guidelines range of 168 to

210 months; Lopez-Salas faced a range of 108-135 months. After the departure they

were sentenced to 156 months (thirteen years) and 96 months (eight years)

respectively.

II. ANALYSIS

We will reverse a district court's decision to depart downward from the

guidelines only for an abuse of discretion. Koon v. United States, 518 U.S. 81, 91

(1996). 

When imposing a sentence, a district court is limited to a sentence falling within

the range specified by the guidelines if the case is an ordinary one. Id. at 92. In order

to preserve some flexibility and discretion for the district court to respond to unique

individual circumstances, Congress allows the court to depart if "there exists an

aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken

into consideration by the Sentencing Commission in formulating the guidelines that

should result in a sentence different from that described." 18 U.S.C. § 3553(b). 

The Sentencing Commission intended for each guideline to carve out a

"'heartland,' a set of typical cases embodying the conduct that each guideline
1National origin is a prohibited factor. However, a person's legal status as a

deportable alien is not synonymous with national origin. See United States v. Restrepo,

999 F.2d 640, 644 (2d Cir. 1993).

2

In dicta of previous opinions, we have expressed our doubts about collateral

consequences flowing from alien status as a basis for departure. United States v.

Bahena, 223 F.3d 797, 807 (8th Cir. 2000); United States v. Navarro, 218 F.3d 895,

898 (8th Cir. 2000).

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describes." U.S. Sentencing Guidelines Manual, ch. 1, pt. A(4)(b) (2001) [hereinafter

U.S.S.G]. The guidelines specify certain factors that are encouraged or discouraged.1

See U.S.S.G. §§ 5H, 5K. Other than for crimes related directly to alien status, such as

illegal re-entry into the country, the guidelines do not mention the effects of alien status

as a departure factor. United States v. Restrepo, 999 F.2d 640, 644 (2d Cir. 1993).

If a factor is unmentioned in the guidelines, the court must consider the "structure and

theory of both the relevant individual guidelines and the guidelines taken as a whole,"

to determine whether the factor makes the case unusual or atypical enough to take the

case out of the heartland. Koon, 518 U.S. at 96 (quoting United States v. Rivera, 994

F.2d 942, 949 (1st Cir. 1993)). In doing this, the court must be cognizant of the fact

that the Commission expected departures based on unmentioned factors would be

"highly infrequent." U.S.S.G. Ch. 1., Pt. A(4)(b).

We have not previously considered whether alien status and the collateral

consequences flowing from that status justify departure.2 The Second Circuit held that

although alienage may be a basis for departure in some circumstances, the particular

collateral consequences the defendant faced in that case as a result of being a

deportable alien (ineligibility for placement in community-confinement for the last six

months of his sentence, post-imprisonment detention while awaiting deportation, and

deportation itself) could not support a departure. Restrepo, 999 F.2d at 644-47.

Several other circuits have followed the rationale of Restrepo. See United States v.

Veloza, 83 F.3d 380, 382 (11th Cir. 1996), overruled on other grounds by United
3Even Restrepo and the cases following it acknowledged in a very general sense

that alienage may be a basis for departure, but seemed to hold that the particular

collateral consequences flowing from alienage in those cases could never be a basis for

departure. 999 F.2d at 644; see also Veloza, 83 F.3d at 382.

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States v. Campbell, 181 F.3d 1263 (11th Cir. 1999); United States v. Mendoza-Lopez,

7 F.3d 1483, 1487 (10th Cir. 1993); United States v. Nnanna, 7 F.3d 420, 422 (5th Cir.

1993). To the extent that these cases suggest that factors related to alien status may

never be a basis for departure, they are inconsistent with Koon, which made it clear that

courts may not declare what sentencing factors are inappropriate in every circumstance.

518 U.S. at 106; see also United States v. DeBeir, 186 F.3d 561, 569 (4th Cir. 1999)

(noting that the above cases were all decided prior to Koon, which limits the authority

of appellate courts to categorically limit possible departure factors); United States v.

Farouil, 124 F.3d 838, 847 (7th Cir. 1997) (same).

Three circuits have held that alienage, or the collateral consequences flowing

therefrom, may be a basis for departure in some circumstances.3 Farouil, 124 F.3d at

847; United States v. Charry Cubillos, 91 F.3d 1342, 1344 (9th Cir. 1996); United

States v. Smith, 27 F.3d 649, 655 (D.C. Cir. 1994). We agree. As a factor

unmentioned in the guidelines, alien status and the collateral consequences flowing

therefrom may be an appropriate basis for departure.

However, just because an unmentioned factor may be considered for departure,

"does not mean that courts have unfettered authority to depart whenever that factor is

invoked." United States v. Bautistia, No. 00-3227, 2001 WL 783740, *4 (7th Cir. July

12, 2001). The court must still articulate why that factor is sufficiently atypical to

justify a departure. See id. (reversing a downward departure based on consequences

surrounding deportation because the defendant-alien's circumstances were not

"extraordinary"); Smith, 27 F.3d at 655 (holding that departure based on increased

severity in sentence due to alien status is only appropriate if the difference is
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substantial, undeserved and the court has high degree of confidence that it will apply

for substantial part of defendant's sentence). Thus, we must examine the specific

collateral consequences flowing from alien status upon which the district court based

its departure.

A. Ineligibility for Early Release

The particular question of ineligibility for early release after completing the drug

treatment program is one of first impression in any circuit court. In examining how this

factor relates to the structure and theory of the guidelines, we must first consider the

statutory backdrop against which the guidelines operate. See Charry Cubillos, 91 F.3d

at 1345 (remanding case to district court to consider departure decision based on alien

status according to structure and theory of guidelines, including why the deportable

alien was ineligible for minimum security and community confinement).

The BOP has been directed by Congress to provide appropriate substance abuse

treatment for each prisoner it determines has a treatable condition of substance

addiction. 18 U.S.C. § 3621. To this end, the BOP must provide residential substance

abuse treatment, and make arrangements for appropriate after care. Id. § 3621(e)(1).

As an incentive to prisoners convicted of nonviolent offenses, the BOP may reduce

their sentence by up to one year when they successfully complete the treatment

program. Id. § 3621(e)(2)(B). The BOP possesses substantial discretion in

determining who is eligible for early release upon completion of the drug treatment

program and how early the release should be. See Lopez v. Davis, 531 U.S. 230

(2001) (upholding a BOP regulation categorically excluding, based upon its general

discretion under the statute to grant or deny early release, prisoners convicted of

otherwise nonviolent offenses that involved use of a firearm).

Based on the discretion granted it under the statute, the BOP has categorically

excluded from early release several groups of inmates who would otherwise be eligible
4We have mentioned only those who are categorically prohibited under the BOP

regulation. This does not include the large number of inmates categorically prohibited

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under the statute. Prisoners who have an INS detainer filed against them are only one

group. 28 C.F.R. § 550.58(a)(1)(i). The regulation also categorically excludes: pretrial

inmates, contractual boarders (such as inmates from the District of Columbia or the

military), inmates with prior convictions of certain serious offenses, inmates ineligible

for a later community-based program determined according to the warden's professional

discretion, and inmates whose current offense is a non-violent felony under the statute

but otherwise involved threats or risks of violence. 28 C.F.R. § 550.58(a)(1).

In Lopez the Supreme Court held that it was within the BOP's discretion, as

granted to it under 18 U.S.C. § 3621(e)(2), to make rules categorically excluding

certain types of inmates from receiving early release. 531 U.S. at 235. Lopez only

examined that portion of the regulation excluding inmates whose current conviction was

a non-violent felony, but nonetheless involved possession of a firearm. Id. at 236.

However, we see no difference between the categorical exclusion examined in Lopez

and the one involved here. Thus, it is within the BOP's discretion to categorically

exclude inmates who have had INS detainers filed against them from eligibility for early

release after completing the treatment program.

With this structure in mind, we see two levels on which appellees have failed to

distinguish their situations as atypical or unusual. First, they do little to differentiate

their individual cases from that of any deportable alien who may qualify for the drug

treatment program. Second, and more importantly, they fail to distinguish the plight of

a deportable alien from that of any other class of inmates that would qualify for early

release but for the fact that they are categorically prohibited from consideration by BOP

regulations. Thus, the district court was incorrect when it based the departure on the

fact that the status of being a deportable alien results in less benefits than an American

citizen would have available in the penitentiaries.4 If departure is appropriate for
under the statute because they were convicted of a violent crime.

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deportable aliens who are categorically prohibited from early release, then a departure

would also seem appropriate for the other groups categorically excluded from

eligibility. Being categorically excluded from receiving early release is not, by itself,

an unusual or atypical factor, nor will departures based on this factor be highly

infrequent.

This is not to say that this factor can never be a basis for departure. We

recognize that "Congress did not grant federal courts authority to decide what sorts of

sentencing considerations are inappropriate in every circumstance." Koon, 518 U.S.

at 106. Rather, in order for a district court to base a departure on the fact that a

defendant, as a deportable alien, is not eligible for early release, even if he completes

the drug treatment program, there must be additional facts concerning the defendant's

individual circumstances to make the particular case atypical or unusual. See

Bautistia, 2001 WL 783740, at *4 (holding that departure based on the collateral

consequences of deportation is proper only if defendant's circumstances are

"extraordinary"); Smith, 27 F.3d at 655 (holding that downward departure based on

defendant's status as a deportable alien is only appropriate if the defendant would suffer

"a fortuitous increase in the severity of his sentence" as a result of that status). 

B. Conditions of Confinement

There are two issues in this case related to conditions of confinement.

Deportable aliens are not eligible for minimum security facilities and they are not

eligible to serve the final ten percent of their sentence (up to six months) in a half-way

house. The district court declined to base its departure on the general increased

severity in conditions of confinement based on BOP policy, stating "I'm less concerned

about the fact that he doesn't have a chance to go to a minimum security place. It

seems to me that's well within the discretion of the Bureau of Prisons." Sentencing
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Transcript of Lopez-Salas at 77. Although it is not entirely clear from this statement

whether the court declined to depart on this factor based on an exercise of its discretion

in light of the facts of these cases, or whether it thought it did not have the authority to

depart, we read it to indicate the district court thought it did not have the authority to

depart. Such a decision is reviewable on appeal. 

Congress has directed the BOP, "to the extent practicable," to assure that a

prisoner will spend a reasonable part (but not more than six months) of the last ten

percent of his sentence "under conditions that will afford the prisoner a reasonable

opportunity to adjust to and prepare for the prisoner's re-entry into the community." 18

U.S.C. § 3624(c). The "to the extent practicable" language in the statute gives the BOP

some measure of discretion in assigning inmates to a half-way house during the last

portion of their incarceration. Restrepo, 999 F.2d at 645. According to BOP policy,

a deportable alien is not eligible for this six months of community-confinement. The

BOP is given even more flexibility in assigning any prisoner to a particular correctional

facility. 18 U.S.C. § 3621(b). It is the policy of the BOP to automatically assign a

higher security factor to deportable aliens, making them ineligible for minimum security

prisons. Sentencing Transcript of Lopez-Salas at 63. Although the BOP policy allows

a change in this designation according to an individual's situation, the BOP official

testifying at the sentencing hearing could not recall an instance of this occurring in his

region. Id. at 67.

The circuits that have considered this issue since Koon have held that increased

severity in the conditions of confinement resulting from alien status is a possible basis

for departure in some circumstances. See United States v. Davoudi, 172 F.3d 1130,

1134 (9th Cir. 1999); Farouil, 124 F.3d at 841, 847; see also Smith, 27 F.3d at 654-55

(holding prior to Koon, that increased severity in conditions of confinement may be a

departure factor). We agree. However, the fact that a deportable alien may be subject

to some increases in the severity of the conditions of confinement alone is not

sufficient to make his case atypical or unusual.
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In its pre-Koon decision, the Second Circuit in Restrepo found these conditions

of confinement factors inappropriate for downward departure, in large part because the

court thought allowing departures would infringe upon the discretion granted to the

BOP under the statutory scheme. Restrepo, 999 F.2d at 645; but see Smith, 27 F.3d

at 654 (disagreeing with the conclusion that granting a departure would infringe upon

the BOP's discretion). With respect to the six months in a half-way house, the Second

Circuit thought it arguable that the statute was not meant to apply to deportable aliens

since its express purpose was to ease an inmate's transition back into the community

and deportable aliens are released from prison into the custody of the Attorney General

pending deportation. Id.; but see Smith 27 F.3d at 654 (agreeing with this possible

interpretation of the statute but noting that the BOP's then-current regulations did not

interpret it in that manner). 

The reasoning of Restrepo, although insufficient to justify a blanket prohibition

against considering conditions of confinement faced by deportable aliens, counsels

strongly against allowing a departure based on that general factor alone. See Smith, 27

F.3d at 655 (noting that since the BOP has discretion in determining conditions of

confinement and makes determinations in that area based on a wide variety of factors

in addition to alien status, departure based on increased severity in conditions of

confinement faced by deportable alien will be quite rare). Also, according to our

previous analysis, the fact that ineligibility results from a proper operation of the

statutory scheme counsels against granting departures to deportable aliens, unless there

are additional facts making their situation atypical. 

 Therefore, a departure on this basis is only appropriate in exceptional

circumstances, such as where there is a substantial, undeserved increase in the severity

of conditions of confinement, which would affect a substantial portion of a defendant's
5For example, in United States v. Bakeas, the district court departed downward

because although the guidelines "contemplate a relatively light imprisonment [for

defendant's offense], typically served in a minimum security setting or community

confinement, [defendant], because he is not a citizen, would do the same time in a

substantially more punitive environment." 987 F. Supp. 44, 46 (D. Mass. 1997). In

that case, the guidelines called for a one-year sentence that would normally either be

served in community confinement, or at most, in a minimum security prison camp. Id.

BOP policy would have transformed this sentence into one year at a medium security

prison, a "substantially more punitive environment." Id. Thus, the defendant's situation

in that case satisfied the criteria described in Smith for a possible departure: that it

substantially increased the severity of the conditions of confinement, undeservedly, for

a substantial portion of the defendant's sentence. See also United States v. Simalavong,

924 F. Supp. 610 (D. Vt. 1995) (departing downward in a similar situation).

6For example, we have noted that "[a deportable alien] is considered a greater

escape risk, and is therefore subjected to more onerous conditions of confinement. . . .

Congress has virtually plenary power over immigration matters, and it has the right to

determine the conditions upon which noncitizens are allowed to remain in this country."

Navarro, 218 F.3d at 898.

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sentence.5 Smith, 27 F.3d at 655; see also United States v. Guzman, 236 F.3d 830, 834

(7th Cir. 2001) ("we emphasize that . . . status as a deportable alien is relevant only

insofar as it may lead to conditions of confinement, or other incidents of punishment,

that are substantially more onerous than the framers of the guidelines contemplated in

fixing the punishment range for . . . [an] offense"). When contemplating such a

departure, a district court should consider why a deportable alien is generally ineligible

for minimum security or half-way house confinement.6 Charry Cubillos, 91 F.3d at

1345.

The guidelines mandated a minimum sentence of nine years for Lopez-Salas and

fourteen years for Ramos. There is no indication in the record that either would

otherwise have qualified for a minimum security assignment. In light of sentences of

this length, the fact that appellees are ineligible for half-way house assignment for the
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last six months because the BOP considers deportable aliens security risks is not, alone,

an exceptional increase in the severity of the conditions of confinement.

III. CONCLUSION

For the foregoing reasons we reverse the sentences and remand to the district

court for re-sentencing consistent with this opinion.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. The defendants’ status as deportable aliens unnecessarily

places them in a more restrictive status of confinement, and denies them access to

BOP’s drug treatment, early release, and community confinement programs that are

otherwise available to the general prison population. The district court had the

authority to depart downward on the basis of the defendants’ immigration status, and

did so. Absent an abuse of discretion, that decision is not subject to our review. See

Koon v. United States, 518 U.S. 81, 91 (1996) ; United States v. Navarro, 218 F.3d

895, 898 (8th Cir. 2000) (finding that a discretionary decision not to depart from the

Sentencing Guidelines is unreviewable absent either an unconstitutional motive or a

court’s legally erroneous determination that it lacked authority to consider a mitigating

factor); U.S. Sentencing Guidelines Manual § 5K2.0 Commentary (2000) (“District

Courts have an institutional advantage over appellate courts in making these sort of

determinations, especially as they see so many more Guidelines cases than appellate

courts do.”) (quoting Koon, 518 U.S. at 98). 

I agree with the district court that downward departures were appropriate on

these occasions, where the defendants’ immigration status alone increased the severity

of their sentences. I would therefore affirm the district court’s granting of defendants’

motion for downward departure.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.