*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-50755

Summary Calendar

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

FERNANDO CANTU-RAMOS,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

Civil Docket #DR-00-CR-36-1

_________________________________________________________________

May 24, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:*

The United States appeals from the district court’s sua

sponte grant of a substantial downward departure in sentencing

appellee Fernando Cantu-Ramos. Ramos pled guilty to possession of

cocaine with intent to distribute after he was caught trying to

drive a car laden with 20 pounds of cocaine and 86 pounds of

marijuana across the Mexican border through Eagle Pass, Texas. The
2

PSR indicated a sentencing range of 57 to 71 months. The district

court departed downward to 30 months, citing appellee’s “super

acceptance of responsibility,” the health problems of one of his

children, his lack of a previous criminal record, and the “unique

economic and political and human circumstances that we are dealing

on the southwest border.” We reverse and remand for resentencing.

While downward departures are reviewed for abuse of

discretion, district courts may depart downward from the applicable

guideline range only when they find a “mitigating circumstance of

a kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guideline.” U.S.S.G.

§ 5K2.1; 18 U.S.C. § 3553(b). The United States Supreme Court has

acknowledged that, “when a court finds an atypical case, one to

which a particular guideline linguistically applies but [in which]

conduct significantly differs from the norm, the court may consider

whether a departure is warranted.” Koon v. United States, 518 U.S.

81, 98-100 (1996). A departure is appropriate only in the

extraordinary case that falls outside the “heartland” of typical

offenses covered by the conviction. 

While the district court’s desire to show mercy and

compassion to this defendant are abstractly laudable, he abused his

discretion in this case. All of the factors cited by the district

court are either taken into consideration by the relevant

guidelines or are excluded by the guidelines from sentencing

relevancy. First, the guidelines provide for, and appellant
3

already received, a three-level downward adjustment for acceptance

of responsibility. Second, the absence of a criminal history did

not provide an extraordinary reason for departing from the

guidelines range, nor is the appellee’s failure to lead the

government on a high-speed chase (also mentioned in passing by the

court) relevant at all. Third, while the court did not expressly

rely on appellee’s mention of a child’s dental problem, the

motivation for committing the crime was, in this case, not

sufficiently compelling to justify a 50% sentence reduction. (See,

U.S.S.G. § 5H1.6 (family ties and responsibilities are not

ordinarily relevant). Finally, the guidelines specifically state

that economic and geographic concerns are not relevant to a

sentence determination. See U.S.S.G. § 5H1.10. 

As the district court predicted, this court must correct

his sentencing error, and accordingly we reverse and remand for

resentencing in accordance with the guidelines.

Sentence REVERSED and REMANDED.