In United States v. Bautista, 258 F.3d 602, 605 n.2 (7th Cir. 2001), the court noted that a
departure based on the consequences of. deportation because of “cultural assimilation” was
prohibited. As an aside, however, the court appeared to leave open whether a defendant could
argue that “cultural assimilation” could be taken into account when examining the defendant’s
culpability - e.g., whether the defendant illegally returned only because of his strong ties to the
United States. See Soto-Montero, 55 Fed. Appx. 778, 779, 2003 WL 261958, at *2 (declining to

determine whether Bautista “opened the door” to argue “cultural assimilation” with respect to

culpability).

Affirming the district court’s denial of departure, the court in Soto-Montero held,
assuming that departure was permitted, that the court properly exercised its discretion. 55 Fed,
Appx. 778, 780, 2003 WL 261958, at *3. The district court first examined the “cultural
assimilation” factors which included the fact that the defendant “lived in the United States for
most of his life” with his family, could not speak his native language (Spanish), had no real
connection to Mexico. Id, The court weighed these factors against the defendant’s “frequent
run-ins with the law, which undermined his stated sharing of community values and national

I

allegiance.” Id. As a result, the Court concluded that the defendant’s “cultural assimilation” to
the United States did not outweigh his checkered criminal history, and therefore, the defendant
was not entitled to a downward departure. Id.

Applying these same factors, the sentencing court in Martinez~Alvarez, 256 F. Supp. 2d
at 920-21, granted a one-level departure based on the finding that the defendant’s “motivation” to

illegally reenter the United States was based on his “cultural assimilation,” and therefore, the

case was “sufficiently unusual” to take the “case out of the heartland of typical re-entry cases.”


CONCLUSION
For the foregoing reasons, this Court GRANTS Defendant Tejeda’s motion for downward

departure and imposes a sentence of 30 months incarceration. It is so ordered.

ENTER: Blnnel, Mh Hearn
BLANCHE M. MANNING
pate: G/A/fo ¥

U.S. DISTRICT COURT JUDGE


and he had lived here ever since, attending school and eventually becoming a permanent resident.
Id. Because he had “lived virtually his entire life” in the United States, the court found that the
defendant had “no experience living in Mexico.” Id. Other than his estranged father, the
defendant’s entire family resided in the Midwest, including his five year old daughter, whom he
actively supports both emotionally and momentarily. Id, Within a month of being deported, the
defendant illegally returned to the Midwest to be with his family and began working to support
his family. Id. Finally, the court noted that defendant was arrested after a traffic stop.

Taking the above facts into account, the court found that “this case is sufficiently unusual
to merit a small departure” because defendant’s “motivation” to illegally reenter the United
States was based on his “cultural assimilation,” not on any economic or criminal motive. Id, In
making this determination, the court noted that “most unlawful re-entry defendants . . . lack
defendant’s ties to this country.” Id. Also important to the court was the fact that most other
illegal re-entry defendants are arrested after committing other serious crimes, where as the
defendant there was arrested after a simple traffic stop? Id.

Consequently, although it is not certain what position the Seventh Circuit will take on the
issue, based on the cases cited above, particularly Soto-Montero, 55 Fed. Appx. 778, 779, 2003
WL 261958, at *2, it appears that this Court has the discretion to weigh the facts of this case to
determine if “cultural assimilation” had an effect on Tejeda’s culpability in illegally reentering
the United States. Because this Court finds that it has the discretion to weigh cultural

assimilation, it will now tum to the factors identified in Soto-Montero, 55 Fed. Appx. 778, 779,

2 In reaching this conclusion, the court noted that these positive factors outweighed the

factors which go against cultural assimilation, such as the defendant dropping out of school, his
gang affiliation, multiple arrests, and drug abuse. Id. at 922.

6


In making this determination, the court considered four “objective factors.” First, the court
examined the length of time the defendant lived in the United States, noting that “a person who
has lived here most of his life [particularly if he was brought here as a child by his parents] is
more likely to have been assimilated,” and thus, motivated to illegally re-enter the country. Id. at
920. Also relevant to this factor is whether the defendant “was educated in American schools”
and whether he “was a “lawful permanent resident,” both of which “would advance
assimilation.” Id.

In contrast to the first factor, the court next examined the defendant’s level of familiarity
with his country of origin” because “‘a defendant deported to a country he does not know will
have greater motivation to leave than one deported to a more familiar environment.” Id.
Relevant to this determination is whether the defendant has spent “any appreciable” time there,
“particularly as an adult,” and whether the defendant speaks his native language. Id.

Third, the court looked into whether the defendant had strong “family ties” in the United
States because the desire to be with family “can be a strong motivation to re-enter unlawfully.”
Id. Important to this inquiry is whether “all or most of (defendant’s] family live [in the United
States],” particularly a spouse or minor children, and whether the children are legal United States
citizens. Id,

Finally, the court took into account “what the defendant did and where he went upon re-
entry.” Id. Noting that a defendant who “immediately retumed to his family” shows a greater
likelihood of cultural assimilation. Id.

Applying the above factors, the court found that all four “weigh in favor of

departure.” Id. at 921. The defendant’s mother brought him to the United States as a small child


defendant charged with illegal re-entry, who does not have such strong ties, and re-enters for
economic or criminal purposes. As such, this Court holds that the facts of this case are
sufficiently unusual to take this case out of the heartland of a typical re-entry case.

Having decided to grant a downward departure, the Court next turns to how much to
depart. To determine the extent of departure, sentencing courts must “link the degree of
departure to the structure of the Guidelines and justify the extent of the departure taken.” United
States v. Scott, 145 F.3d 878, 886 (7th Cir. 1998). One method approved for justifying the extent
of departure is for the court to analogize the departure to an existing Guideline. See Martinez-

Alvarez, 256 F. Supp. 2d at 922. The court in Martinez-Alvarez, 256 F. Supp. 2d at 922, found

that a departure for “cultural assimilation” is closely analogous to a departure under section
2L2.1(b)(1), which provides for a three level departure for a defendant convicted of human
smuggling, if the person being smuggled was the defendant’s spouse or child. Id. This Court
finds this analogy reasonable and therefore will depart 3 levels downward.

Accordingly, this Court finds that Tejeda now has an offense level of 18 and a criminal
history category of II, which results in a range of incarceration between 30-37 months. Based on

the evidence currently before it, this Court sentences Tejeda to 30 months incarceration.


Minate Order Form (06/97)

United States District Court, Northern District of Iinois

N: f Assigned Judge ; Sitting Judge if Other
age Magistrate Judge Blanche M. Manning thon Assigned Judge
CASE NUMBER 03 CR 875 DATE June 21, 2004
CASE United States v. Federico Tejeda-Baltazar
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
nature of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) a Filed motion of [ use listing in “Motion” box above.]

Q) Oo Brief in support of motion due

(3) ia Answer brief to motion due___. Reply to answer brief due___

(4) o Ruling/Hearing on setfor saat

(6) a Status hearing{held/continued to] [set for/re-set for]on __—set for __—_at

(©) o Pretrial conference[held/continued to] [set for/re-set for]on___———sset for att
(©) o Trialfset for/re-set for] on____at

(8) o [Bench/Jury trial] [Hearing] held/continued toa

Q) a This case is dismissed {with/without] prejudice and without costs(by/agreement/pursuant to]

OOFRCP4(m) General Rule21 OFRCP41(a)(1) 0 FRCP41(a)(2).

(10)  @ [Other docket entry] For the reasons set forth in the attached Memorandum and Order, this Court
GRANTS Defendant Tejeda-Baltazar’s Motion for Downward Departure.

(¢55) a {For further detail see order on the reverse side of the original minute order.]

No notices required, advised in open court.

No notices required,

Y | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
RTS deputy's
initials

Date/time received in
central Clerk's Office



2003 WL 261958, at *2 and Martinez-Alvarez, 256 F. Supp. 2d at 920-21.

After carefully reviewing the parties’ submission, the Pre-Sentence Investigation Report,
and letters from Tejeda’s close friends and family, this Court finds that it is proper to depart
downward based on “cultural assimilation.” Tejeda’s parents brought him to Chicago from
Mexico at the age of nine and he and his family, mother and sisters, have lived here since that
time. He eventually became a permanent legal resident. During the 11 years before he was
arrested for possession and sale of narcotics, Tejeda appears to have been a hard working person.
After dropping out of high school, he obtained steady employment and worked to support his
family. Despite growing up in a neighborhood infested with gangs and drugs, other than the
conviction for which he was deported, Tejeda had no other serious convictions. He was arrested
for the current charge only after being misidentified as being involved in a crime.

The record currently before this Court shows that all of Tejeda’s friends and family,
including his only child and fiance of two years, live in the United States. Tejeda is apparently
very close to his only child, and although no longer with the mother, has been providing financial
support. As a result of living almost his entire life in the United State, once deported to Mexico,
Tejeda had great difficulty finding work and felt socially isolated in a country he had not lived in
since he was a boy. Thus, shortly after his deportation, Tejeda illegally re-entered the United
States and made his way back to Chicago to be with his family and friends. Tejeda’s sister told
Probation that the family cared so much for him that they were willing to go back to Mexico, so
that he will not be alone.

Based on the above facts, this Court finds that Tejeda illegally re-entered the United

States based on his exceptional “cultural assimilation,” and is not as culpable as the usual


already taken into account by the applicable Guideline, the court should depart
only if the factor is present to an exceptional degree or in some other way makes
the case different from the ordinary case where the factor is present. Ifa factor is
unmentioned in the Guidelines, the court must, after considering the structure and
theory of both relevant individual guidelines and the Guidelines taken as a whole.
decide whether it is sufficient to take the case out of the Guidelines heartland.
The court must bear in mind the Commission's expectation that departures based
on grounds not mentioned in the Guidelines will be highly infrequent.

Id. at 95-96 (emphasis added).

Here, the “cultural assimilation” factor is not mentioned in the Guidelines. Therefore, the
Court will examine the relevant case law and the Guidelines to determine whether it is a factor
which is sufficient to take this case out of the heartland.

While the Seventh Circuit has not specifically addressed whether the sentencing court

”

may “consider ‘cultural assimilation” when sentencing a defendant for illegally reentering the

United States, in violation of 18 U.S.C. § 1326, United States v. Soto-Montero, 55 Fed. Appx.
778, 779, 2003 WL 261958, at *2 (7th Cir. Feb. 5, 2003), the three circuits to address the issue
have held that “cultural assimilation” could be taken into account when examining the
defendant’s culpability — e.g., whether the defendant illegally returned only because of his strong
ties to the United States and not for economic or criminal reasons. E.g., United States v.

Rodriguez-Montelongo, 263 F.3d 429, 433 (5th Cir. 2001); United States v. Sanchez-Valencia,

148 F.3d 1273, 1274 (11th Cir. 1998); United States v. Lipman, 133 F.3d 726, 730-31 (9th Cir.
1998). Following these decisions, a number of district courts, including one in the Seventh
Circuit, have granted downward departures for illegal reentry based on a lesser degree of

culpability due to cultural assimilation. E.g., United States v. Martinez-Alvarez, 256 F. Supp. 2d

917, 918-20 (B.D, Wis. 2003); United States v. Reyes- Campos, 293 F. Supp. 2d 1252, 1255-57

(M.D. Al. 2003).



Therefore, “{i]n the absence of a characteristic or circumstance that distinguishes a case as
sufficiently atypical to warrant a sentence different from that called for under the guidelines, a
sentence outside the guideline range is not authorized.” U.S.S.G. § 5K2.0, Comment.
Examining departures from the Guidelines, the Supreme Court in Koon explained that the
Sentencing Commission intended “the sentencing courts to treat each guideline as carving out a

‘heartland’, a set of typical cases embodying the conduct that each guideline describes.” Koon,

518 U.S, at 93 (quoting U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b)). The Sentencing Commission,
however, “did not adequately take into account cases that are, for one reason or another,
unusual.” Id. Thus, “[w]hen a court finds an atypical case, one to which a particular guideline
linguistically applies but where conduct significantly differs from the norm, the court may
consider whether a departure is warranted.” U.S.S.G. ch. 1, pt. A, intro. cmt. 4(b). Therefore,
before a sentencing court is permitted to depart from the Guidelines, the court must find that
the case is “unusual” enough for it to fall outside the “heartland” of cases covered in the
applicable guideline. See Koon, 518 USS. at 93.

The Court in Koon set forth the following factors that sentencing courts should use in
determining whether to depart from the applicable Guideline range is appropriate:

1) What features of this case, potentially, take it outside the Guidelines' "heartland" and

make of it a special, or unusual, case?

2) Has the Commission forbidden departures based on those features?

3) If not, has the Commission encouraged departures based on those features?

4) If not, has the Commission discouraged departures based on those features?
Koon, 518 U.S. at 95. The Court went on to explain the mechanics of applying this framework:

If the special factor is a forbidden factor, the sentencing court cannot use it as a

basis for departure. Ifthe special factor is an encouraged factor, the court is

authorized to depart if the applicable Guideline does not already take it into
account. Ifthe special factor is a discouraged factor, or an encouraged factor

2


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA, )
) Hon. Blanche M. Manning
)
v. ) 03 CR 875
)
FEDERICO TEJEDA-BALTAZAR, )
MEMORANDUM AND ORDER

Defendant Tejeda pled guilty to one count of illegal re-entry into the United States, after
having been deported because of a conviction of an aggravated felony, in violation of 8 U.S.C. §
1326. Under United States Sentencing Guideline (“Guideline”) section 2L1.2, Probation
calculated Tejeda’s total offense level at a 21, with a criminal history category of II, which results
in a range of incarceration between 41 to 51 months. The present matter comes before this Court
on Tejeda’s Motion for Downward Departure based on his “exceptional cultural assimilation” to
the United States, pursuant to Guideline section 5K2.0 and 18 U.S.C. § 3553. For the reasons
that follow, this Court GRANTS the motion.!

Generally, the sentencing court must impose a sentence falling within the applicable
range set forth in the Guidelines. See Koon v. United States, 518 U.S. 81, 85 (1996). The court
may, however, depart from the Guidelines if it “finds that 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). See also U.S.S.G. § 5K2.0; Koon, 518 U.S. at 92.

1 This Memorandum and Order vacates the Court’s oral ruling at Tejeda’s sentencing

hearing denying his motion for downward departure.