United States Court of Appeals

For the First Circuit

No. 02-1190

UNITED STATES OF AMERICA,

Appellee,

v.

JUAN EDUARDO MEJIA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Selya, Lynch, and Lipez, Circuit Judges.

Timothy G. Watkins for appellant.

Cynthia A. Young, Assistant United States Attorney, with

whom Michael J. Sullivan, United States Attorney, was on brief,

for appellee.

October 30, 2002
1The Introduction to the Sentencing Guidelines explains:

The Commission intends the sentencing courts to treat

each guideline as carving out a "heartland," a set of

typical cases embodying the conduct that each guideline

describes. When 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.

United States Sentencing Commission, Guidelines Manual, Ch. 1,

Pt. A, intro. comment. 4(b)(Nov. 2001).

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LIPEZ, Circuit Judge. During his sentencing hearing for

illegally reentering the United States after deportation, defendant

Juan Eduardo Mejia argued that he should receive a downward

departure from the sentence prescribed in the United States

Sentencing Commission Guidelines (the Sentencing Guidelines)

because his motivation for returning, namely, to care for his

daughter, took him out of the "heartland" of illegal reentry

defendants.1 The district court denied his motion for a downward

departure based in part on its belief that it had no authority to

consider a defendant's motive for returning as a basis for

departure. 

Mejia appeals this legal determination, arguing that the

district court erred in its conclusion that it had no authority to

consider a downward departure based on a defendant's atypical

motivation in returning to the United States. Finding that, in

this case, Mejia's "motivation" argument for departure is

semantically and practically equivalent to the specific offender
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characteristic of "family ties and responsibilities" set forth in

the Sentencing Guidelines, USSG § 5H1.6, we affirm the district

court's denial of a downward departure without addressing the legal

correctness of the district court's conclusion that motivation is

an impermissible basis for departure.

I.

We recite the facts as Mejia alleges them to be. Mejia

first came to the United States in 1988, living briefly with his

father in Boston before moving to New Bedford, where he met Melissa

Desroches. During the course of their one-year relationship,

Desroches and Mejia had a child: Adria Mejia-Desroches. At the

relevant time, Adria resided with and was raised by her maternal

grandmother, Gwen Andrade and Andrade's husband, on Cape Cod. Her

mother played no role in her upbringing due to drug dependency and

related problems, and her grandparents have legal custody. 

Before his 1992 arrest for drug trafficking, possession

of a firearm and assault with a dangerous weapon, Mejia lived in

Hyannis, Massachusetts, near his daughter. During his

incarceration following conviction for these offenses, and later

when living in the Dominican Republic after his deportation on

February 9, 1995, Mejia kept in contact with his daughter. In

August 2000, Mejia received news that Gwen Andrade was ill and was

not expected to live much longer. Mejia asserts that it was out of
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concern for his daughter's well-being that he decided to leave the

Dominican Republic and return to Massachusetts.

After his return to the United States, Mejia lived with

a girlfriend in Mattapan, MA and earned approximately $600-$700 per

week working for a cable company in New Hampshire. While he did

not provide financial support to Andrade for the care of Adria, he

did provide certain necessities and gifts for Adria when he had the

money. During this time Mejia would visit Adria, and Andrade

allowed Adria to be with her father on overnight visits.

On January 29, 2001, Mejia was arrested in Boston on

charges of distributing cocaine, and subsequently convicted on May

18, 2001, in South Boston District Court and sentenced to time

served. He was immediately taken into federal custody on an

outstanding arrest warrant for illegal reentry following

deportation. 

Pursuant to a plea agreement with the government, Mejia

pled guilty on September 14, 2001, to one count of illegally

reentering the United States after deportation in violation of 8

U.S.C. § 1326(a)(b)(2) (2000). Before sentencing, Mejia filed a

motion requesting a downward departure because his reentry into the

United States was "based on his extraordinary family ties and

responsibilities with respect to his young daughter." At the

sentencing hearing Mejia, relying on United States v. Lipman, 133

F.3d 726 (9th Cir. 1997), revised his motion for a downward
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departure, asserting instead that his motivation for returning to

the United States took him out of the heartland of reentry cases.

Mejia's counsel argued that the "archetype of illegal reentry

offenders which Congress targeted for severe punishment" are those

who return to the United States for unlawful or pecuniary reasons.

Thus, because Mejia's motivation for returning was concern for his

daughter, he fell outside the heartland of the offense of illegal

reentry. The district court denied the motion, concluding that it

did not have the authority to depart from the Sentencing Guidelines

on the basis of motivation as a factor standing alone, and that, in

light of Andrade's husband's plans to retain custody of Adria,

Mejia's situation was insufficiently extraordinary to meet the

requirements of a downward departure based on the "family ties and

responsibilities" factor. USSG § 5H1.6.

Applying the Sentencing Guidelines, the district court

determined that Mejia had a base offense level of 8. However,

Mejia had been deported after having been sentenced to 4-5 years on

a 1992 conviction for drug trafficking, and was therefore subject

to a 16-level increase for a defendant who was previously deported

after a conviction for certain specified felonies, including drug

trafficking offenses for which the sentence imposed exceeded 13

months. USSG § 2L1.2(b)(1)(A). The district court calculated

Mejia's adjusted offense level to be 24, bringing his total offense

level, after the 3-level downward adjustment for acceptance of
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responsibility, to 21. On December 14, 2001, Mejia was sentenced

to 46 months' imprisonment and 2 years' supervised release. 

II.

The Sentencing Reform Act of 1984 allows a defendant to

appeal an upward departure and the government to appeal a downward

departure. 18 U.S.C. § 3742(a)(3), (b)(3) (2000). A defendant can

also appeal from the refusal of the district court to grant a

downward departure if the district court bases its decision on a

view that it lacks the legal authority to consider a departure.

United States v. Ahlers, No. 01-2570, slip op. at 6 (1st Cir. Sept.

30, 2002)("Appellate jurisdiction from a denial of a departure

request attaches when the sentencing court bases its action on a

perception that it lacks the legal authority to grant the

request."); United States v. Woodward, 277 F.3d 87, 92-93 (1st Cir.

2002)("[A] refusal to depart is unreviewable unless the district

court based its decision on an error of law.")(quoting United

States v. Dewire, 271 F.3d 333, 337-38 (1st Cir. 2001)); see also

United States v. Pierro, 32 F.3d 611, 619 (1st Cir. 1994)("It is by

now axiomatic that a criminal defendant cannot ground an appeal on

a sentencing court's discretionary decision not to depart below the

guideline sentencing range."). Accordingly, 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.
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III.

At Mejia's sentencing hearing, the district court

declined to depart from the Sentencing Guidelines on two grounds.

First, the court concluded that motive is not a permitted factor

for departure: "I do not think...that I have authority to depart.

I do not think that motive, whatever the motive in this case for

coming back to see his daughter, is a ground for departure."

Second, the court determined that the facts of Mejia's case were

not sufficiently extraordinary to meet the standard for a departure

based on the "family ties and responsibilities" offender

characteristic. 

The Sentencing Guidelines establish ranges of criminal

sentences for federal offenses and offenders. A district court

must impose a sentence within the applicable Guideline range if it

finds the case to be a typical one. However, in an "exceptional"

case, a district court may depart from the Guideline range "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." 18 U.S.C. § 1553(a) (2000); see

also Koon v. United States, 518 U.S. 81, 95 (1996); United States

v. Pereira, 272 F. 3d 76, 80 (1st Cir. 2001). 

The Sentencing Commission lists certain offender

characteristics that can never be grounds for departure, and other

factors that are either encouraged or discouraged bases for
2A court may decide to depart from the Sentencing Guidelines

in reliance on a factor not specifically enumerated in the

Guidelines. "If a 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

Guideline's heartland." Koon, 518 U.S. at 96 (internal citations

omitted). As we said in Bogdan, this analytical framework for

unmentioned factors, as exposited in Koon, is less demanding than

the requirement of "exceptionality" for discouraged factors. 

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departure. The Sentencing Commission lists "family ties and

responsibilities" as a discouraged factor, and stipulates that

"[f]amily ties and responsibilities and community ties are not

ordinarily relevant in determining whether a sentence should be

outside the applicable guideline range." USSG § 5H1.6.

Unmentioned offender characteristics that are "the semantic or

practical equivalents" of encouraged or discouraged characteristics

should be examined within the structure of the Sentencing

Guidelines. Koon, 518 U.S. at 110. "To hold otherwise would

enable defendants to circumvent the entire Guideline structure by

cleverly characterizing discouraged factors in such a way as to

appear as--and be treated under the more lenient standard of--

unmentioned factors."2 United States v. Bogdan, 284 F.3d 324, 329

(1st Cir. 2002); see also United States v. Romero, 32 F.3d 641, 653

(1st Cir.1994) (treating defendant's status as a father under the

category of "family ties and responsibilities," despite his

argument that such status should be examined as a separate,

unmentioned factor). 
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Arguing that his motivation for committing the offense of

unlawful reentry is a factor not explicitly listed by the

Commission as encouraged or discouraged, Mejia challenges the

district court's determination that motivation is not a permissible

unmentioned ground for departure. However, the claim that his

relationship with his daughter and his responsibility as a parent

were factors in the commission of the offense and should therefore

mitigate his punishment is not meaningfully distinguishable from

the argument that his sentence should be reduced due to his

exceptional family ties and responsibilities. 

Defendants usually invoke the "family ties and

responsibilities" extant at the time of sentencing in arguing for

a downward departure (that is, they argue the consequences of a

sentence on their family ties and responsibilities). Here, with

his motivation argument, Mejia invokes the "family ties and

responsibilities" extant at the time he committed the crime to

lessen his culpability for the crime of illegal reentry. However,

there is nothing in the text of USSG § 5H1.6 stipulating that

"family ties and responsibilities" is only a discouraged factor in

assessing the consequences of a sentence and not in assessing the

culpability for a crime. Thus, we find that Mejia's claim, however

he wishes to characterize it, is inescapably based on factors

explicitly accounted for in the Sentencing Guidelines, namely,

"family ties and responsibilities," and do not reach the question
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of whether motivation as a separate category is ever a permissible

ground for departure.

The district court determined that the facts of Mejia's

family ties and responsibilities are not sufficiently exceptional

to warrant a departure on this ground. Because the district court

did not misunderstand its legal authority to depart downward, but

merely exercised its discretion not to do so, we lack jurisdiction

to review the court's refusal to grant a departure.

Accordingly, the sentence imposed by the district court

is affirmed.

So ordered.