F I L E D

United States Court of Appeals

Tenth Circuit

SEP 19 2003

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ELIEZER REYES-RODRIGUEZ,

Defendant-Appellee.

No. 02-2147

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-01-786 MV)

David N. Williams, Assistant United States Attorney (David C. Iglesias, United

States Attorney, with him on the briefs), Albuquerque, New Mexico, for PlaintiffAppellant.

Jane Greek, Assistant Federal Public Defender (Stephen P. McCue, Federal Public

Defender, and Shari Lynn Allison, Research and Writing Specialist, with her on

the brief), Las Cruces, New Mexico, for Defendant-Appellee.

Before SEYMOUR, HENRY and LUCERO, Circuit Judges.

SEYMOUR, Circuit Judge.
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Eliezer Reyes-Rodriguez, a citizen of Mexico, pled guilty to illegally reentering the United States following deportation for an aggravated felony in

violation of 8 U.S.C. § 1326(b)(2). Mr. Reyes-Rodriguez’s offense level was

originally calculated to be 21, which equaled a sentence of seventy to eightyseven months when coupled with his criminal history category V. The district

court departed downward eight levels to 13, resulting in a range of imprisonment

from thirty to thirty-seven months, concluding the departure was warranted by Mr.

Reyes-Rodriguez’s extraordinary family circumstances. The court sentenced Mr.

Reyes-Rodriguez to thirty months imprisonment, followed by two years of

unsupervised release during which Mr. Reyes-Rodriguez would be deported to

Mexico. The government appealed, challenging the court’s downward departure. 

We reverse and remand.

I

Prior to his arrest, Mr. Reyes-Rodriguez worked in the United States as a

laborer and construction worker, and sent every other paycheck to his parents in

southern Mexico for their support. The remaining paychecks were used to

support himself, his wife, and their two children. In sentencing Mr. ReyesRodriguez, the district court noted that the area where Mr. Reyes-Rodriguez’s

parents live is “extremely rural, and people live in poverty that we can’t even

imagine,” Aplt. App. at 71, and the house in which his parents live is a “one-
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room shack with no running water, no heat, no electricity, and . . . a dirt floor.” 

Id. at 72-73. Medical records indicated Mr. Reyes-Rodriguez’s mother, aged

seventy-two, suffers from congestive cardiac insufficiency, a chronic condition

requiring treatment for the remainder of her life. Her treatment was financed by

Mr. Reyes-Rodriguez’s paychecks. Likewise, his father, who is in his early

eighties, “is virtually blind and suffers from seizures due to a head injury, which

also has caused psychological impairments, significant memory deficits, and

periods of confusion.” Id. at 72. The court further noted that the “level of

medical care for the poor in Mexico is still . . . dismally insufficient, and poor

people that cannot get medical care, especially in remote villages, simply don’t

get it, and they just die,” id. at 70, and that “[w]ithout Mr. Reyes’ assistance, [his

parents] are unable to provide for themselves the basic necessities, or any medical

care.” Id. at 73.

Mr. Reyes-Rodriguez indicated that upon his return to Mexico, he and his

family planned to reside with his parents. They would survive on what he could

plant and grow on the land, or what he could earn working in construction. He

also noted he had siblings who lived near his parents, but that they had their own

families, earned very little, and could “hardly help [his] parents.” Id. at 64.

Based on these findings, the district court determined a downward

departure was warranted in sentencing Mr. Reyes-Rodriguez. The court stated
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“[t]he fact that his brothers and sisters in Mexico may also be able to assist [in

caring for his parents] doesn’t detract from the need [his parents] have for

continued support” from Mr. Reyes-Rodriguez. Id. at 71-72. Likewise, the court

reasoned that Mr. Reyes-Rodriguez’ inability to “send dollars home also doesn’t

detract from the fact that he can contribute in a meaningful way to the medical

treatment, medical expenses, and basic necessities for his parents.” Id. at 72. 

II

The Sentencing Guidelines dictate that “[f]amily ties and responsibilities . .

. are not ordinarily relevant in determining whether a sentence should be outside

the applicable guideline range.” U.S.S.G. § 5H1.6. Because family

circumstances departures are disfavored under the guidelines, “a district court

may depart based on family circumstances ‘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.’” United States v. Gauvin, 173 F.3d

798, 807 (10th Cir. 1999) (quoting Koon v. United States, 518 U.S. 81, 96

(1996)). The burden is on a defendant to provide evidence sufficient to support a

conclusion that his family circumstances are outside the heartland. United States

v. Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997).

“We review departures from the guidelines under a unitary abuse-ofdiscretion standard, giving deference to essentially factual questions and plenary
1We reject the government’s argument that the heartland for this case

“consists of illegal aliens who have been convicted of reentering the United States

after they have been convicted of an aggravated felony, and subsequently have

been deported.” Aplt. Br. at 18. Family circumstances downward departure cases

examine the defendant’s specific circumstances in comparison to similar family

circumstances presented by other defendants, regardless of their underlying

convictions. See, e.g., United States v. King, 280 F.3d 886, 889 (8th Cir.), cert.

denied, 123 S.Ct. 402 (2002) (family circumstances of defendant convicted of

money laundering compared to family circumstances of defendants convicted of

drug and gun charges, child pornography, and money laundering); United States

v. Pereira, 272 F.3d 76, 81-82 (1st Cir. 2001) (tax fraud defendant compared with

(continued...)

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review to those that are essentially legal.” United States v. Concha, 294 F.3d

1248, 1251 (10th Cir. 2002), cert. denied, 123 S.Ct. 949 (2003). However, even

though 

we give substantial deference to a district court’s decision that a

discouraged factor justifies departure because it is present in some

unusual or exceptional way, we compare the circumstances given for

departure in the defendant’s case to the circumstances in existing

reported Guidelines cases to ensure the district court has not abused

its discretion. 

United States v. King, 280 F.3d 886, 889 (8th Cir.), cert. denied, 123 S.Ct. 402

(2002). Despite the admittedly difficult facts presented in this case, we do not

believe they support a downward departure for extraordinary family circumstances

under governing law. 

Determining “[w]hat family circumstances are exceptional to a degree more

than those in the heartland of cases” is a “most difficult inquiry.” Gauvin, 173

F.3d at 807.1

 Here, the difficulty is compounded, for our focus cannot be on
1

(...continued)

defendants convicted of drug and gun charges, conspiracy, and price fixing);

United States v. Gauvin, 173 F.3d 798, 807-08 (10th Cir. 1999) (defendant

convicted of various assault charges had family circumstances compared to

defendants guilty of drug and gun related charges); United States v. RodriguezValarde, 127 F.3d 966, 969 (10th Cir. 1997) (family circumstances claim rejected

on ground defendant had not “shown circumstances [facing his minor children

were] substantially different than those facing the minor children of any single

parent who is about to be incarcerated”) (emphasis added); United States v.

Rivera, 994 F.2d 942, 954 (1st Cir. 1993) (family circumstances of defendant

convicted of drug possession with intent to distribute compared with defendants

convicted of assault, bribery, theft, and drug charges).

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whether the loss of Mr. Reyes-Rodriguez’s pre-incarceration support to his

parents is so extreme as to place this case outside the heartland of family

circumstances cases. Upon his release from prison and return to Mexico, Mr.

Reyes-Rodriguez will not be able to provide monetary support for his parents to

the extent he did prior to his conviction because that support was derived from his

illegal presence and employment in the United States. Therefore, we must

examine whether the support and care Mr. Reyes-Rodriguez can provide to his

parents after his incarceration is so extraordinary as to warrant a downward

departure. Based on our review of case law from this circuit and elsewhere, we

determine that despite the genuinely disheartening facts regarding Mr. ReyesRodriguez’s family, his situation does not fall outside the heartland of family

circumstances cases.

Tenth Circuit case law indicates a downward departure for family
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circumstances is warranted where the “defendant [is] the only individual able to

provide the assistance a family member needs.” United States v. McClatchey, 316

F.3d 1122, 1131 (10th Cir. 2003). See also Gauvin, 173 F.3d at 808 (downward

departure warranted where no extended family existed to assist defendant’s wife

in caring for four young children, wife was working two jobs requiring her to be

away from home for sixteen hours a day, wife ran risk of losing car because of

inability to make car payments, and wife ran risk of losing children because she

was unable to provide them with sufficient care); United States v. Pena, 930 F.2d

1486, 1495 (10th Cir. 1991) (downward departure warranted because defendant’s

behavior was aberrant and defendant was only means of support for two infant

children). Other jurisdictions provide similar guidance. See United States v.

Pereira, 272 F.3d 76, 83 (1st Cir. 2001) (“As long as there are feasible

alternatives of care that are relatively comparable to what the defendant provides,

the defendant cannot be irreplaceable.”); United States v. Sweeting, 213 F.3d 95,

108-09 (3d Cir. 2000) (downward departure inappropriate for defendant whose

son suffered from Tourette’s Syndrome where evidence did not indicate defendant

was only person who could care for son); United States v. Allen, 87 F.3d 1224,

1226 n.2 (11th Cir. 1996) (downward departure unwarranted where defendant’s

husband and adult son were able to help care for father who suffered from

Alzheimer’s and Parkinson’s diseases); United States v. Haversat, 22 F.3d 790,
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797 (8th Cir. 1994) (downward departure warranted where defendant played

“irreplaceable” role in treatment of severely mentally ill spouse and spouse’s

doctor had “grave clinical concerns that [wife’s] medical management could be

safely continued without the ongoing presence of her spouse”); United States v.

Sclamo, 997 F.2d 970, 974 (1st Cir. 1993) (downward departure warranted where

defendant played “critical and unique” role in stepson’s mental health treatment);

United States v. Gaskill, 991 F.2d 82, 86 (3d Cir. 1993) (degree of care required

for severely mentally ill wife, lack of close supervision of wife by any other

family member, and risk to wife’s well being by defendant’s incarceration were

among factors district court should consider on remand for downward departure

sentencing determination). But see United States v. Alba, 933 F.2d 1117, 1122

(2d Cir. 1991) (downward departure affirmed where defendant’s disabled father

depended on him for help in and out of wheelchair; court did not question

whether defendant’s wife could help).

We have no doubt that upon his release from prison, the support and care

Mr. Reyes-Rodriguez will provide for his parents will be important and

significant, given his commendable care in the past. We recognize, as did the

district court, the extreme poverty in which Mr. Reyes-Rodriguez’s parents live

and the limited medical care available to them. We have discovered no cases

addressing the existence of poverty at the level presented in this case. 
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Nonetheless, the difficult circumstances in which Mr. Reyes-Rodriguez’s parents

find themselves do not undermine our conclusion that the care and support Mr.

Reyes-Rodriguez will provide to his parents once he returns to Mexico is not so

specialized and unique that only he can provide it. 

Mr. Reyes-Rodriguez admitted, and the district court acknowledged, that he

has siblings who live near his parents. While his siblings are poor and have their

own families to support, Mr. Reyes-Rodriguez has not offered evidence indicating

they are wholly unable to provide care and assistance to their parents. See

Pereira, 272 F.3d at 83 (“Though it may be that none of [defendant’s] siblings

will be able to provide the same level of parental care, this fact alone is not

sufficient to deem [defendant] irreplaceable.”). The district court pointed out that

while Mr. Reyes-Rodriguez “won’t be able to send dollars home,” he would still

be able to “contribute in a meaningful way to the medical treatment, medical

expenses, and basic necessities for his parents.” Aplt. App. at 72. However,

contributing to his parent’s care in a “meaningful way” is not so extraordinary as

to place this case outside the heartland of other family circumstances cases. See

McClatchey, 316 F.3d at 1132-33 (defendant could not show his constant

presence in home was indispensable part of son’s care or that no alternative care

givers existed); Sweeting, 213 F.3d at 107-08 (nature and type of care for son

suffering from Tourette’s Syndrome not so unique that it could only be performed
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by defendant, where defendant made arrangements with friends to care for son). 

We are thus constrained to hold the family circumstances presented by Mr. ReyesRodriguez are not sufficiently outside the heartland to support a downward

departure in his sentence. The district court abused its discretion in concluding to

the contrary.

Accordingly, we REVERSE the district court and REMAND for resentencing.