1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-22-1998

United States v. Marin Castaneda

Precedential or Non-Precedential:

Docket 97-5252

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Recommended Citation

"United States v. Marin Castaneda" (1998). 1998 Decisions. Paper 21.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/21
Filed January 22, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-5252 

UNITED STATES OF AMERICA, 

v. 

GABRIEL JESUS MARIN-CASTANEDA, 

Gabriel Jesus Marin Castaneda, 

 Appellant. 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. Criminal No. 97-cr-00039) 

Submitted Under Third Circuit LAR 34.1(a) 

November 21, 1997 

BEFORE: SCIRICA and LEWIS, Circuit Judges, 

and POLLAK,* District Judge. 

(Filed January 22, 1998) 

 Tonianne J. Bongiovanni 

 Office of Federal Public Defender 

 972 Broad Street 

 Newark, NJ 07102 

 Attorney for Appellant 

_________________________________________________________________ 

*Honorable Louis H. Pollak, Senior United States District Judge for the 

Eastern District of Pennsylvania, sitting by designation. 
 Kevin McNulty 

 Office of United States Attorney 

 970 Broad Street 

 Room 502 

 Newark, NJ 07102 

 Attorney for Appellee 

OPINION OF THE COURT 

LEWIS, Circuit Judge. 

Gabriel Jesus Marin-Castaneda, a Colombian national, 

appeals the sentence imposed after he pleaded guilty to 

importing 1,227 grams of heroin into the United States 

from Colombia. Marin-Castaneda argues that the district 

court erred when it decided that it did not have the 

authority to depart from the applicable sentencing range 

based on the following factors: (1) Marin-Castaneda's 

willingness not to oppose deportation; (2) his age; and (3) 

the deterrent effect of being hospitalized as a result of 

attempting to smuggle heroin in his stomach. Wefind no 

error committed by the district court. Therefore we will 

affirm the district court's judgment of sentence. 

I. 

In October 1996, Marin-Castaneda arrived at Newark 

International Airport aboard a flight from Colombia. During 

a customs examination, customs officials found a white 

powdery substance in Marin-Castaneda's shoes whichfieldtested positive for heroin. After the officials arrested him, 

Marin-Castaneda informed them that he had also ingested 

pellets of heroin. The agents then transported him to the 

Bayonne Medical Center. He remained in the hospital for 

eleven days, during which time he passed ninety pellets. 

Marin-Castaneda pleaded guilty to importing 

approximately 1,227 grams of heroin into the United

States, in violation of 21 U.S.C. SS 952(a) and 960(a)(1), 

(b)(1). Pursuant to the plea agreement, the base offense 

level was reduced from 32 to 27. The district court granted 

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an additional two-point downward adjustment, pursuant to 

U.S.S.G. S 3B1.2(b), because Marin-Castaneda was a minor 

participant in a larger smuggling scheme. Marin-Castaneda 

moved for a further two-point reduction, under U.S.S.G. 

S 5K2.0, based on his willingness to consent to deportation, 

his age and the deterrent effect of his hospitalization due to 

ingestion of the pellets. The district court denied this 

motion. As a result, the total offense level of 25 and MarinCastaneda's criminal history category of I yielded a 

sentencing guideline range of 57 to 71 months. The district 

court sentenced him to a prison term of 57 months, a 

supervised release term of 5 years and a special 

assessment of $100. Marin-Castaneda was 67 years old at 

the time of sentencing. This appeal followed. 

II. 

The district court had jurisdiction pursuant to 18 U.S.C. 

S 3231. Generally, we lack jurisdiction "to review a refusal 

to depart downward `when the district court, knowing it 

may do so, nonetheless determines that departure is not 

warranted.' " United States v. Sally, 116 F.3d 76, 78 (3d Cir. 

1997) (quoting United States v. McQuilkin, 97 F.3d 723, 729 

(3d Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 2413 

(1997)). We do have jurisdiction, however, when a district 

court refuses to depart downward because it believes it 

lacks the authority to do so. United States v. Evans, 49 

F.3d 109, 111 (3d Cir. 1995). In this case, the district court 

ruled that it had no authority to grant Marin-Castaneda's 

motion, so we have jurisdiction pursuant to 18 U.S.C. 

S 3742 and 28 U.S.C. S 1291. 

We review the question of whether a district court had 

authority to depart downward under an abuse of discretion 

standard. Sally, 116 F.3d at 78. However, a district court's 

determination of the scope of its authority is based entirely 

in law. For this reason, "[l]ittle turns . . . on whether we 

label review of this particular question abuse of discretion 

or de novo." Koon v. United States, 116 S. Ct. 2035, 2047 

(1996) (citation omitted). "A district court by definition 

abuses its discretion when it makes an error of law." Id. 

(citation omitted). 

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III. 

Marin-Castaneda argues that the district court had the 

authority to depart downward based on his willingness to 

consent to deportation,1 his age and the ordeal caused by 

ingestion of the heroin pellets. We will address each of 

these factors in turn. 

A. 

Initially, we must observe that Marin-Castaneda does not 

make any claim that his very status as a deportable alien 

provided a basis for downward departure. Other courts of 

appeal have expressed conflicting opinions as to whether a 

district court can depart downward based on an alien's 

eligibility for deportation. Compare United States v. Farouil, 

124 F.3d 838, 847 (7th Cir. 1997) (holding that a district 

court may depart if it finds that status as a deportable alien 

results in an "unusual or exceptional hardship in. . . 

conditions of confinement"), and United States v. Smith, 27 

F.3d 649, 655 (D.C. Cir. 1994) ("[I]f a deportable alien is 

assigned to a more drastic prison than otherwise solely 

because his escape would have the extra consequence of 

defeating his deportation, then the defendant's status as a 

deportable alien would have clearly generated increased 

severity and thus might be the proper subject of a 

departure."), with United States v. Restrepo, 999 F.2d 640, 

645-47 (2d Cir. 1993) (concluding that status as a 

deportable alien is not an appropriate ground for downward 

departure). However, we need not address this issue

because Marin-Castaneda does not argue that his 

deportability exacerbates his sentence in any way. Rather, 

he claims that the district court should have considered his 

decision not to contest deportation as a basis for departure. 

He supports this claim by noting that: (1) the Attorney 

General has authorized federal prosecutors to recommend 

_________________________________________________________________ 

1. We recognize that Congress has recently acted to replace the term 

"deportation" with "removal." See Omnibus Appropriations Act of 1997, 

Pub. L. No. 104-208, div. C, S 308, 1996 U.S.C.C.A.N. (110 Stat.) 3009- 

620, 3009-621. However, since the term "deportation" appears in most 

of the relevant case law, we will use that term in this opinion to avoid 

any potential confusion. 

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downward departures for aliens who accept deportation 

without resistance; and (2) the Attorney General has the 

power to deport a convicted alien before completion of a 

prison term. We do not find that either of these points 

permits a district court to depart downward when an alien 

concedes deportation. 

In 1995, the Attorney General issued a memorandum to 

all federal prosecutors stating a policy favoring the 

"deportation of criminal aliens from the United States as 

expeditiously as possible." Appendix at 28 (Memorandum 

from Office of the Attorney General, April 28, 1995). In 

furtherance of this objective, the Attorney General

explained that "prosecutors may agree to recommend a one 

or two level downward departure from the applicable

guideline sentencing range in return for the alien's 

concession of deportability and agreement to accept a final 

order of deportation." Id. at 29. Such departures would be 

made pursuant to U.S.S.G. S 5K2.0. See also 18 U.S.C. 

S 3553(b) (stating that sentencing court may impose

sentence outside applicable guideline range if "there exists 

an aggravating or mitigating circumstance of a kind, or to 

a degree, not adequately taken into consideration by the 

Sentencing Commission . . ."). Marin-Castaneda contends 

that, since the prosecution had the authority to recommend 

downward departure based on his willingness to be 

deported, the district court erred in ruling that it could not 

grant the two-point adjustment. 

This argument misses a fundamental point. The 

prosecution did not recommend downward departure on

this basis, but opposed it. The United States Attorney for 

the District of New Jersey did not have to accept MarinCastaneda's offer to waive his right to a deportation 

hearing, and chose to reject it. Since Marin-Castaneda is 

not a resident alien, but a Colombian national who, for all 

that appears, set foot on United States soil for the sole 

purpose of importing heroin, it seems unlikely that he 

would have had any remotely colorable basis for opposing 

deportation. At all events, Marin-Castaneda did not at 

sentencing (and has not here) put forth an arguable

objection to deportation that he was willing to waive in 

exchange for a downward departure. Thus, his waiver of his 

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right to a deportation hearing provides no real 

administrative advantage. Although we have never 

addressed this precise issue, we receive guidance from 

other courts of appeal. In United States v. Clase-Espinal, 

115 F.3d 1054, 1055 (1st Cir. 1997), a district court 

refused to depart downward in sentencing a defendant from 

the Dominican Republic, even though he consented to

deportation, because he had no plausible basis to contest 

deportation. In affirming the district court, the court of 

appeals for the First Circuit noted that section 5K2.0 of the 

Sentencing Guidelines permits a downward departure only 

when "the proffered ground makes the case sufficiently 

atypical to remove it from the `heartland.' " Id. at 1057 

(quoting Koon, 116 S. Ct. at 2045). With this requirement 

in mind, the Clase-Espinal court reasoned that "an alien 

criminal defendant with no plausible basis for contesting 

deportation . . . does not meet the atypicality requirement 

for a section 5K2.0 departure simply by relying upon 

whatever administrative convenience presumably may 

result from a stipulated deportation." 115 F.3d at 1058 

(citation omitted). The court based this conclusion on the 

fact that "only about 3% of all apprehended aliens who are 

expelled ever undergo a deportation hearing." Id. at 1058 

n.4 (citing Immigration and Naturalization Service, 1993 

Statistical Yearbook 158 tbl. 59 (1994)). 

Similarly, in United States v. Flores-Uribe, 106 F.3d 1485, 

1486 (9th Cir. 1997), a district court denied a defendant's 

request for a downward departure based on his consent to 

deportation to Mexico. The district court determined that it 

had neither the authority to depart downward nor to issue 

a deportation order absent a request from the United States 

Attorney. Id. at 1486. The court of appeals for the Ninth 

Circuit affirmed the district court by holding that (1) under 

8 U.S.C. S 1252a(d)(1),2 a district court can only order 

deportation, as an exception to the Executive Branch's 

plenary power to deport aliens, at the request of the United 

States Attorney and (2) absent such a request, the 

defendant's stipulation to deportation had "no practical or 

legal effect since the district court lacked jurisdiction to 

enter a deportation order." Id. at 1487-88. 

_________________________________________________________________ 

2. This provision has since been redesignated as 8 U.S.C. S 1252a(c)(1). 

 6 
We find the reasoning of Clase-Espinal and Flores-Uribe 

compelling with respect to two points: (1) a defendant 

without a nonfrivolous defense to deportation presents no 

basis for downward departure under section 5K2.0 by

simply consenting to deportation and (2) in light of the 

judiciary's limited power with regard to deportation, a 

district court cannot depart downward on this basis

without a request from the United States Attorney. Thus, 

we conclude that the district court did not err in refusing 

to depart downward. Such departure was beyond its 

authority. We note that, even if the prosecution had 

requested downward departure on this basis, the district 

court still would have had the discretion not to depart 

downward. See United States v. Casiano, 113 F.3d 420, 429 

(3d Cir. 1997) ("[I]t is the district court's decision, not the 

prosecutor's, whether to depart and to what extent."); 

Clase-Espinal, 115 F.3d at 1056 (affirming district court's 

decision not to depart despite fact that United States 

Attorney recommended two-level downward departure 

based on defendant's consent to deportation). The United 

States Attorney's opposition only militates against

downward departure in this case. The recommendation of 

the United States Attorney, while it may not be sufficient to 

convince a district court to depart downward on this basis, 

is at least necessary for such a decision. 

Marin-Castaneda makes the supplemental argument that 

the district court had authority to depart downward

because the Attorney General may deport an alien before 

completion of a prison term. The Attorney General has 

authority to 

 remove an alien . . . before the alien has completed a 

 sentence of imprisonment . . . if the Attorney General 

 determines that (I) the alien is confined pursuant to a 

 final conviction for a nonviolent offense . . . and (II) the 

 removal of the alien is appropriate and in the best 

 interest of the United States. 

8 U.S.C. S 1231(a)(4)(B).3 Marin-Castaneda's reliance on 

_________________________________________________________________ 

3. Both parties use the citation "8 U.S.C.S 1252(h)(2)(A)" but this 

provision is presently codified at 8 U.S.C. S 1231(a)(4)(B). See Omnibus 

Appropriations Act of 1997, Pub. L. No. 104-208, div. C, SS 305-06, 1996 

U.S.C.C.A.N. (110 Stat.) 3009-598, 3009-599, 3009-607 (transposing 

language from 8 U.S.C. S 1252 to 8 U.S.C. S 1231). 

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this provision is misplaced for two reasons. First, the 

provision only offers a post-sentence method by which an 

alien may be deported before fully serving a term of 

imprisonment. The provision makes no mention of 

downward departure in imposing the sentence itself.

Second, the statute vests the Attorney General, not the 

district court, with the authority to curtail a prison 

sentence for the purpose of deportation. As discussed 

earlier, a district court cannot sua sponte issue a

deportation order without a request from the United States 

Attorney. 8 U.S.C. S 1252a(c)(1). Thus, the district court 

could not depart downward pursuant to section 

1231(a)(4)(B) because the statute does nothing to expand 

its rather limited powers on issues of deportation. In sum, 

Marin-Castaneda invokes section 1231(a)(4)(B) at the wrong 

juncture and directs his argument at the wrong branch of 

government. In fact, Marin-Castaneda does not even have 

standing to enforce this statute. See Thye v. United States, 

109 F.3d 127, 129 (2d Cir. 1997) (holding that Attorney 

General's authority to deport "creates no private right of 

action" for a criminal alien because Attorney General must 

act in best interest of United States, not the criminal alien). 

The Attorney General may still exercise her power to deport 

Marin-Castaneda before he has completed his sentence, but 

this possibility created no ground for downward departure 

by the district court when it was imposing the sentence. 

Consequently, the district court did not err in concluding 

that it could not depart downward pursuant to 8 U.S.C. 

S 1231(a)(4)(B). 

B. 

Marin-Castaneda argues that his age and the ordeal of 

being hospitalized also served as bases for downward 

departure. We disagree. First, the Sentencing Commission 

has instructed that 

 [a]ge . . . is not ordinarily relevant in determining 

 whether a sentence should be outside the applicable 

 guideline range. Age may be a reason to impose a 

 sentence below the applicable guideline range when the 

 defendant is elderly and infirm and where a form of 

 8 
 punishment such as home confinement might be

 equally efficient as and less costly than incarceration. 

U.S.S.G. S 5H1.1, policy statement. We have interpreted 

this language as "foreclos[ing] departures based on age in 

all but the most extraordinary cases." Sally, 116 F.3d at 78; 

see also United States v. Monaco, 23 F.3d 793, 798 n.7 (3d 

Cir. 1994) (concluding that defendant's age of 57 offered no 

basis for downward departure). Marin-Castaneda does not 

assert any extraordinary condition other than the fact that 

he was 67 years old at the time of sentencing. He does not 

seem to suffer from any unusual impairments for a man his 

age; certainly nothing suggesting that home confinement 

would be as effective as incarceration. In fact, he had never 

been hospitalized before his stay at the Bayonne Medical 

Center. Appendix at 98 (referring to Presentence 

Investigation Report P 37). Absent some extraordinary 

infirmity, we cannot conclude that the bare fact that MarinCastaneda was 67 years old would have justified a 

downward departure by the district court. See United States 

v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (holding that 

section 5H1.1 does not permit downward departure for 67- 

year-old defendant in good health); United States v. Tucker, 

986 F.2d 278, 280 (8th Cir. 1994) (same). 

Second, with regard to the deterrent effect of MarinCastaneda's physical ordeal, he has indicated that he was 

aware of the health risks involved in ingesting heroin prior 

to his trip. Addendum to Presentence Investigation Report 

at 14. Thus, the manifest danger in swallowing ninety 

pellets of heroin did not deter Marin-Castaneda from 

embarking on this endeavor in the first place. Furthermore, 

the physical trauma he experienced, which is inherent in 

smuggling drugs in this manner, could hardly be 

considered an unusual characteristic or circumstance 

distinguishing this case "from the `heartland' cases covered 

by the guidelines." U.S.S.G. S 5K2.0, policy statement; see 

also Koon, 116 S. Ct. at 2046 ("Before a departure is 

permitted, certain aspects of the case must be found 

unusual enough for it to fall outside the heartland of cases 

. . . ."). In sum, neither Marin-Castaneda's age nor his 

physical ordeal presented grounds for a downward 

departure. 

 9 
IV. 

Before the district court, Marin-Castaneda argued that 

the three proposed bases for downward departure -- 

consent to deportation, age and physical trauma -- warrant 

downward departure collectively, even if they may not 

individually. We find the three bases to be no more

compelling collectively than they are individually. Viewed 

together or separately, these factors do not justify 

downward departure. 

Since the district court did not err in determining the 

scope of its authority to depart downward, we will affirm its 

judgment of sentence. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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