United States Court of Appeals,

Eleventh Circuit.

No. 94-5012.

Non-Argument Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Gustavo Augusto GOMEZ-VILLA, Defendant-Appellant.

July 31, 1995.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-6096-CR-KLR), Kenneth L. Ryskamp,

Judge.

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

The issue presented in this appeal is whether the district

court properly found that it could not depart downward based on

sentencing misinformation in a deportation form. We affirm.

I.

A federal grand jury sitting in the Southern District of

Florida charged appellant Gustavo Augusto Gomez-Villa ("GomezVilla") in a one-count indictment with illegal reentry after

deportation following conviction for an aggravated felony, in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). Gomez-Villa pled

guilty to the charge.

The Presentence Investigation Report ("PSI") calculated GomezVilla's base offense level to be 8 under U.S.S.G. § 2L1.2(a).

Because Gomez-Villa had been convicted of an aggravated felony, 16

points were added to his offense level. He was given a two-level

downward adjustment for acceptance of responsibility and an
 1

Although Gomez-Villa states that the maximum prison

sentence is 15 years, 8 U.S.C. § 1326(b)(2) actually provides for

imprisonment for not more than 20 years. 

additional one-level reduction for doing so timely, decreasing the

offense level to 21. Gomez-Villa's criminal history category was

III.

Gomez-Villa first illegally entered the United States in 1986.

He was convicted of cocaine trafficking in March 1990 and was

deported to Colombia in March of 1991. He illegally reentered the

United States in March of 1992. His other criminal conduct

included a sealed record for trafficking in cocaine in 1986. With

an offense level of 21 and a criminal history category of III, the

PSI calculated his guideline range as 46 to 57 months.

Gomez-Villa filed objections to the PSI in which he objected

to the guideline range as exceeding the maximum punishment set

forth in the immigration form presented to him upon his

deportation. Among his objections, Gomez-Villa conceded that 8

U.S.C. § 1326(b)(2) provides that the maximum penalty for an alien

who is deported following conviction for an aggravated felony is 15

years.1

 Gomez-Villa also objected to his criminal history category

III as over-representing the seriousness of his criminal history.

At sentencing, Gomez-Villa argued, and the government

stipulated, that he had signed INS Form I-294, which advised that

he would be subject to a maximum two-year sentence should he

illegally reenter the United States. Thus, Gomez-Villa argued that

the government was barred from seeking a sentence greater than two

years, and requested the district court to depart downward under

U.S.S.G. § 5K2.0. Because the government's communication of
erroneous information regarding the penalty for illegal reentry was

not a circumstance sufficiently covered by the Sentencing

Commission ("the Commission"), the district court concluded that it

lacked the authority to depart downward and denied the request.

The district court did, however, grant a downward departure of two

criminal history categories from III to I because it thought "this

is a situation that the authors of the sentencing guidelines did

not have in mind." (R3-19). With a total offense level of 21 and

a criminal history category of I, the guideline range was reduced

to 37 to 46 months. The government objected to the downward

departure in the criminal history category but not to the lower end

of the guideline range. The district court sentenced Gomez-Villa

to 37 months' imprisonment followed by a three-year term of

supervised release. The court also ordered that upon release from

imprisonment, Gomez-Villa should be deported and not reenter the

United States without the permission of the United States Attorney

General. Gomez-Villa then perfected this appeal.

II.

Gomez-Villa contends that the Commission did not consider the

mitigating circumstance present in this case—that the government

provided Form I-294 erroneously advising aliens that they would be

subject to a two-year sentence if they illegally reentered the

country—when formulating the guidelines, and that the district

court's conclusion that it was without authority to depart on this

ground under § 5K2.0 was therefore erroneous. He also claims that

the court could have departed under 18 U.S.C. § 3553(a)(1), based

on the nature and circumstance of the offense and his history and
characteristics, because he did not purposely engage in criminal

conduct, but rather returned to provide financial support for his

children.

The government concedes that the ground at issue is a

circumstance that was not adequately considered by the Commission,

but argues that because none of the goals of the Sentencing

Guidelines would be promoted by a downward departure premised on

this ground, the district court was, in fact, without discretion to

consider a departure.

III.

 Ordinarily, an appellate court may not review a district

court's refusal to grant a request for downward departure. United

States v. Hadaway, 998 F.2d 917, 919 (11th Cir.1993). However, a

district court's refusal to consider a departure is reviewable on

appeal if the district court's decision is based on the belief that

it lacked the authority to consider a departure. United States v.

Williams, 948 F.2d 706, 708 (11th Cir.1991). The district court's

determination that it lacked the authority to depart from the

Sentencing Guidelines is reviewed de novo. Id.

At sentencing, the district court refused to consider a

downward departure based on Form I-294. Thus, because the court

refused to depart, believing it lacked the authority to do so, the

district court's decision is reviewable.

 A district court may make a downward departure from the

Sentencing Guidelines if a factor of a kind, or to a degree, not

adequately taken into consideration by the Commission when

formulating the guidelines exists. 18 U.S.C. § 3553(b); U.S.S.G.
§ 5K2.0. When determining whether the Commission adequately

considered a factor, the court can look only to the Sentencing

Guidelines, policy statements, and official commentary for

guidance. 18 U.S.C. § 3553(b). If the Commission did not

adequately consider a particular circumstance, then the court must

determine whether reliance on the factor is consistent with the

goals of the Sentencing Guidelines. United States v. Godfrey, 22

F.3d 1048, 1053 (11th Cir.1994). The goals of sentencing are to

reflect the seriousness of the offense, promote respect for the

law, provide appropriate punishment, deter criminal conduct,

protect the public from the defendant's criminal conduct, and

provide the defendant with needed care or treatment. 18 U.S.C. §

3553(a)(2).

IV.

 This court has not had an occasion to determine whether the

Commission contemplated the situation surrounding the issuance of

Form I-294 to deported aliens when formulating the guidelines. See

U.S.S.G. § 5K2.0. Two of our sister circuits, however, have

confronted situations involving requests for a downward departure

based on Form I-294. The First and Ninth Circuits both agreed that

the Commission did not take into consideration the Form I-294

situation when formulating the guidelines. United States v. Smith,

14 F.3d 662, 666 (1st Cir.1994); United States v. Ullyses-Salazar,

28 F.3d 932, 938 (9th Cir.1994), cert. denied, --- U.S. ----, 115

S.Ct. 1367, 131 L.Ed.2d 223 (1995). We agree with the analyses of

our sister circuits. Indeed, nothing in the guidelines, policy

statements, or commentary suggests that this situation was even
remotely contemplated by the Commission.

 Next, we must decide whether a departure based upon Form I294 is consistent with the goals of the Sentencing Guidelines. See

Godfrey, 22 F.3d at 1053. Contrary to Gomez-Villa's contentions,

a downward departure based on the government's misconduct would not

promote respect for the law because it did not encourage or

threaten Gomez-Villa into breaking the law by illegally reentering

the country. See Ullyses-Salazar, 28 F.3d at 938. Gomez-Villa,

however, intentionally violated the law by illegally reentering the

United States after deportation. Both the First and Ninth Circuits

concluded that allowing departures in similar circumstances would

be contrary to the Sentencing Guidelines' goals of deterring

criminal conduct and promoting respect for the law. Smith, 14 F.3d

at 666 (concluding that departing after Smith intentionally

committed a felony by illegally reentering the United States would

be contrary to the goals of the guidelines); Ullyses-Salazar, 28

F.3d at 938 (concluding that the only purpose served by a departure

would be to deter government misconduct and that the court does not

permit departures based on circumstances that neither bear on the

offense in question, nor speak to the offender's character). Thus,

like our sister circuits, we hold that a departure in this case

would be contrary to the guidelines' goal of deterring criminal

conduct and promoting respect of the law among those who violate

it.

 As a second basis for departure, Gomez-Villa suggests that

the court could have considered a downward departure based upon the

circumstances surrounding the offense and his reasons for illegally
reentering the country, i.e., his family ties and financial

responsibilities. At sentencing, Gomez-Villa contended that he

reentered the United States only to help support his children while

they attended college, that he immediately admitted that he was an

illegal alien when found, and that his criminal history was

significantly over-represented by a criminal history category III.

The law is clear that family ties and responsibilities are not

relevant in determining sentence unless there are extraordinary

circumstances. U.S.S.G. § 5H1.6; United States v. Cacho, 951 F.2d

308, 310-11 (11th Cir.1992) (unless there are extraordinary

circumstances, a district court may not depart downward to reflect

a defendant's parental situation). Nothing in this case

demonstrates that Gomez-Villa's financial responsibilities to his

college-age children are extraordinary. Moreover, the district

court already granted a departure under § 5K2.0, concluding that

the "computations under the guidelines" significantly overstated

the seriousness of the offense. (R3-21).

Accordingly, the district court was correct in holding that it

lacked the authority to consider a departure.

For the foregoing reasons, we affirm Gomez-Villa's sentence.

AFFIRMED.