## 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), Albuquerq ue, New Mexico, for PlaintiffAppellant. Jane Greek, Assistant Federal Public Defender (Step hen P. McCue, Federal Public Defender, and Shari Lynn Allison, Research and Writ ing Specialist, with her on the brief), Las Cruces, New Mexico, for Defendant-Appellee.

Before SEYMOUR , HENRY and LUCERO , Circuit Judges.

SEYMOUR , Circuit Judge.-2-

Eliezer Reyes-Rodriguez, a citizen of Mexico, pled guilty to illegally reentering the United States following deportation fo r an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Mr. Reyes-Rodr iguez’s offense level was originally calculated to be 21, which equaled a sen tence of seventy to eightyseven months when coupled with his criminal historycategory V. The district court departed downward eight levels to 13, resulti ng in a range of imprisonment from thirty to thirty-seven months, concluding the departure was warranted by Mr. Reyes-Rodriguez’s extraordinary family circumstance s. The court sentenced Mr. Reyes-Rodriguez to thirty months imprisonment, foll owed by two years of unsupervised release during which Mr. Reyes-Rodrigu ez would be deported to Mexico. The government appealed, challenging the c ourt’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 oth er paycheck to his parents in southern Mexico for their support. The remaining p aychecks were used to support himself, his wife, and their two children. In sentencing Mr. ReyesRodriguez, the district court noted that the area w here Mr. Reyes-Rodriguez’s parents live is “extremely rural, and people live i n poverty that we can’t even imagine,” Aplt. App. at 71, and the house in which his parents live is a “one--3-

room shack with no running water, no heat, no elect ricity, and . . . a dirt floor.” Id . at 72-73. Medical records indicated Mr. Reyes-Ro driguez’s mother, aged seventy-two, suffers from congestive cardiac insuff iciency, 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 seiz ures due to a head injury, which also has caused psychological impairments, signific ant 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 b asic 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 wo uld survive on what he could plant and grow on the land, or what he could earn w orking 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 hel p [his] parents.” Id. at 64. Based on these findings, the district court determi ned a downward departure was warranted in sentencing Mr. Reyes-Rod riguez. The court stated-4-

“[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 ne ed [his parents] have for continued support” from Mr. Reyes-Rodriguez. Id. at 71-72. Likewise, the court reasoned that Mr. Reyes-Rodriguez’ inability to “se nd dollars home also doesn’t detract from the fact that he can contribute in a m eaningful way to the medical treatment, medical expenses, and basic necessities for his parents.” Id. at 72.
II The Sentencing Guidelines dictate that “[f]amily ti es and responsibilities . . . are not ordinarily relevant in determining whethe r a sentence should be outside the applicable guideline range.” U.S.S.G. § 5H1.6. Because family circumstances departures are disfavored under the g uidelines, “a district court may depart based on family circumstances ‘only if t he factor is present to an exceptional degree or in some other way makes the c ase 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 e vidence sufficient to support a conclusion that his family circumstances are outsid e the heartland. United States v. Archuleta , 128 F.3d 1446, 1449 (10th Cir. 1997). “We review departures from the guidelines under a u nitary abuse-ofdiscretion standard, giving deference to essentiall y factual questions and plenary1 We reject the government’s argument that the heartl and for this case

“consists of illegal aliens who have been convicted of reentering the United States after they have been convicted of an aggravated fel ony, and subsequently have been deported.” Aplt. Br. at 18. Family circumsta nces downward departure cases examine the defendant’s specific circumstances in c omparison to similar family circumstances presented by other defendants, regard less 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 def endant convicted of money laundering compared to family circumstances o f 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 def endant compared with (continued...) -5- 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 i s present in some unusual or exceptional way, we compare the circumst ances given for departure in the defendant’s case to the circumstan ces in existing reported Guidelines cases to ensure the district co urt 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 pre sented in this case, we do not believe they support a downward departure for extra ordinary family circumstances under governing law. Determining “[w]hat family circumstances are except ional to a degree more than those in the heartland of cases” is a “most di fficult inquiry.” Gauvin , 173 F.3d at 807. 1 Here, the difficulty is compounded, for our focus cannot be on1 (...continued)

defendants convicted of drug and gun charges, consp iracy, and price fixing); United States v. Gauvin , 173 F.3d 798, 807-08 (10th Cir. 1999) (defendant convicted of various assault charges had family cir cumstances compared to defendants guilty of drug and gun related charges); United States v. RodriguezValarde , 127 F.3d 966, 969 (10th Cir. 1997) (family circum stances claim rejected on ground defendant had not “shown circumstances [f acing his minor children were] substantially different than those facing the minor children of any single parentwho is about to be incarcerated”) (emphasis added) ; United States v. Rivera , 994 F.2d 942, 954 (1st Cir. 1993) (family circums tances of defendant convicted of drug possession with intent to distrib ute compared with defendants convicted of assault, bribery, theft, and drug char ges). -6- whether the loss of Mr. Reyes-Rodriguez’s pre-incar ceration 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 t hat support was derived from his illegal presence and employment in the United State s. Therefore, we must examine whether the support and care Mr. Reyes-Rodr iguez can provide to his parents after his incarceration is so extraordinaryas to warrant a downward departure. Based on our review of case law from th is circuit and elsewhere, we determine that despite the genuinely disheartening facts regarding Mr. ReyesRodriguez’s family, his situation does not fall out side the heartland of family circumstances cases. Tenth Circuit case law indicates a downward departu re for family-7-

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 existe d 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 ri sk of losing car because of inability to make car payments, and wife ran risk o f 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 gui dance. See United States v.
Pereira , 272 F.3d 76, 83 (1st Cir. 2001) (“As long as ther e 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 inappropr iate for defendant whose son suffered from Tourette’s Syndrome where evidenc e 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,-8-

797 (8th Cir. 1994) (downward departure warranted w here defendant played “irreplaceable” role in treatment of severely menta lly ill spouse and spouse’s doctor had “grave clinical concerns that [wife’s] m edical management could be safely continued without the ongoing presence of he r spouse”); United States v. Sclamo , 997 F.2d 970, 974 (1st Cir. 1993) (downward departure warranted where defendant played “critical and unique” role in step son’s mental health treatment); United States v. Gaskill , 991 F.2d 82, 86 (3d Cir. 1993) (degree of care re quired for severely mentally ill wife, lack of close supervision of wife by any other family member, and risk to wife’s well being by def endant’s incarceration were among factors district court should consider on rem and for downward departure sentencing determination). But see United States v. Alba , 933 F.2d 1117, 1122 (2d Cir. 1991) (downward departure affirmed where d efendant’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 wi ll be important and significant, given his commendable care in the past . We recognize, as did the district court, the extreme poverty in which Mr. Re yes-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 pr esented in this case.-9-

Nonetheless, the difficult circumstances in which M r. 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 no t offered evidence indicating they are wholly unable to provide care and assistan ce to their parents. See
Pereira , 272 F.3d at 83 (“Though it may be that none of [d efendant’s] siblings will be able to provide the same level of parental care, this fact alone is not sufficient to deem [defendant] irreplaceable.”). T he district court pointed out that while Mr. Reyes-Rodriguez “won’t be able to send do llars home,” he would still be able to “contribute in a meaningful way to the m edical 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 f amily 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 s on suffering from Tourette’s Syndrome not so unique th at it could only be performed-10-

by defendant, where defendant made arrangements wit h friends to care for son). We are thus constrained to hold the family circumst ances presented by Mr. ReyesRodriguez are not sufficiently outside the heartlan d to support a downward departure in his sentence. The district court abus ed its discretion in concluding to the contrary. Accordingly, we REVERSE the district court and REMAND for resentencing.