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. e du/thir dc ir c uit_1998/21Filed 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 Di strict Judge for the Eastern District of Pennsylvania, sitting by design ation.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 guilt y to importing 1,227 grams of heroin into the United Sta tes from Colombia. Marin-Castaneda argues that the dist rict
court erred when it decided that it did not have th e 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 res ult 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 wh ite powdery substance in Marin-Castaneda's shoes whichf ieldtested positive for heroin. After the officials arr ested him, Marin-Castaneda informed them that he had also inge sted 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 pel lets.

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

2an additional two-point downward adjustment, pursua nt to

U.S.S.G. S 3B1.2(b), because Marin-Castaneda was a minor participant in a larger smuggling scheme. Marin-Cas taneda moved for a further two-point reduction, under U.S. S.G. S 5K2.0, based on his willingness to consent to dep ortation, his age and the deterrent effect of his hospitaliza tion 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 ol d 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, knowin g 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 d istrict court refuses to depart downward because it believe s it lacks the authority to do so. United States v. Evan s, 49 F.3d 109, 111 (3d Cir. 1995). In this case, the dis trict court ruled that it had no authority to grant Marin-Casta neda'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 disc retion standard. Sally, 116 F.3d at 78. However, a distric t court's determination of the scope of its authority is base d entirely in law. For this reason, "[l]ittle turns . . . on w hether we label review of this particular question abuse of d iscretion or de novo." Koon v. United States, 116 S. Ct. 2035 , 2047 (1996) (citation omitted). "A district court by def inition
abuses its discretion when it makes an error of law ." Id. (citation omitted).

3III.

Marin-Castaneda argues that the district court had the authority to depart downward based on his willingne ss to consent to deportation,1 his age and the ordeal cau sed by ingestion of the heroin pellets. We will address ea ch of
these factors in turn.

A.

Initially, we must observe that Marin-Castaneda doe s not make any claim that his very status as a deportable alien provided a basis for downward departure. Other cour ts of appeal have expressed conflicting opinions as to wh ether a district court can depart downward based on an alie n's eligibility for deportation. Compare United States v. Farouil, 124 F.3d 838, 847 (7th Cir. 1997) (holding that a d istrict court may depart if it finds that status as a depor table alien results in an "unusual or exceptional hardship in.

. . conditions of confinement"), and United States v. S mith, 27 F.3d 649, 655 (D.C. Cir. 1994) ("[I]f a deportable alien is assigned to a more drastic prison than otherwise so lely because his escape would have the extra consequence of defeating his deportation, then the defendant's sta tus as a deportable alien would have clearly generated incre ased 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 d ownward 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 consi dered his decision not to contest deportation as a basis for departure. He supports this claim by noting that: (1) the Atto rney General has authorized federal prosecutors to recom mend

___________________________________________________ ______________

1. We recognize that Congress has recently acted to replace the term "deportation" with "removal." See Omnibus Appropria tions 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.

4downward departures for aliens who accept deportati on

without resistance; and (2) the Attorney General ha s the power to deport a convicted alien before completion of a prison term. We do not find that either of these po ints permits a district court to depart downward when an alien concedes deportation.

In 1995, the Attorney General issued a memorandum t o all federal prosecutors stating a policy favoring t he "deportation of criminal aliens from the United Sta tes as expeditiously as possible." Appendix at 28 (Memoran dum 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 w ould 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 "the re exists an aggravating or mitigating circumstance of a kind , or to a degree, not adequately taken into consideration b y the Sentencing Commission . . ."). Marin-Castaneda cont ends that, since the prosecution had the authority to re commend downward departure based on his willingness to be deported, the district court erred in ruling that i t 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 Attor ney for the District of New Jersey did not have to accept M arinCastaneda's offer to waive his right to a deportati on hearing, and chose to reject it. Since Marin-Castan eda is not a resident alien, but a Colombian national who, for all that appears, set foot on United States soil for th e sole purpose of importing heroin, it seems unlikely that he would have had any remotely colorable basis for opp osing 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 wai ve in exchange for a downward departure. Thus, his waiver of his

5right to a deportation hearing provides no real

administrative advantage. Although we have never addressed this precise issue, we receive guidance f rom other courts of appeal. In United States v. Clase-E spinal, 115 F.3d 1054, 1055 (1st Cir. 1997), a district cou rt refused to depart downward in sentencing a defendan t from the Dominican Republic, even though he consented to deportation, because he had no plausible basis to c ontest deportation. In affirming the district court, the c ourt of appeals for the First Circuit noted that section 5K 2.0 of the Sentencing Guidelines permits a downward departure only when "the proffered ground makes the case sufficien tly atypical to remove it from the `heartland.' " Id. a t 1057 (quoting Koon, 116 S. Ct. at 2045). With this requi rement in mind, the Clase-Espinal court reasoned that "an alien criminal defendant with no plausible basis for cont esting deportation . . . does not meet the atypicality req uirement for a section 5K2.0 departure simply by relying upo n 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. a t 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 def endant's request for a downward departure based on his conse nt to deportation to Mexico. The district court determine d that it had neither the authority to depart downward nor to issue a deportation order absent a request from the Unite d 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 Branc h's plenary power to deport aliens, at the request of t he United States Attorney and (2) absent such a request, the defendant's stipulation to deportation had "no prac tical or legal effect since the district court lacked jurisd iction 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).

6We find the reasoning of Clase-Espinal and Flores-U ribe

compelling with respect to two points: (1) a defend ant without a nonfrivolous defense to deportation prese nts no basis for downward departure under section 5K2.0 by simply consenting to deportation and (2) in light o f the judiciary's limited power with regard to deportatio n, 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 ha d requested downward departure on this basis, the dis trict
court still would have had the discretion not to de part downward. See United States v. Casiano, 113 F.3d 42 0, 429 (3d Cir. 1997) ("[I]t is the district court's decis ion, 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 Sta tes Attorney recommended two-level downward departure based on defendant's consent to deportation). The U nited States Attorney's opposition only militates against downward departure in this case. The recommendation of the United States Attorney, while it may not be suf ficient to convince a district court to depart downward on thi s basis, is at least necessary for such a decision.

Marin-Castaneda makes the supplemental argument tha t the district court had authority to depart downward because the Attorney General may deport an alien be fore completion of a prison term. The Attorney General h as authority to

remove an alien . . . before the alien has c ompleted a sentence of imprisonment . . . if the Attorn ey General determines that (I) the alien is confined pu rsuant to a
final conviction for a nonviolent offense . . . and (II) the removal of the alien is appropriate and in t he best
interest of the United States.

8 U.S.C. S 1231(a)(4)(B).3 Marin-Castaneda's relian ce 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, di v. C, SS 305-06, 1996 U.S.C.C.A.N. (110 Stat.) 3009-598, 3009-599, 3009-6 07 (transposing language from 8 U.S.C. S 1252 to 8 U.S.C. S 1231).

7this provision is misplaced for two reasons. First, the

provision only offers a post-sentence method by whi ch an alien may be deported before fully serving a term o f 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 pri son sentence for the purpose of deportation. As discuss ed 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 distric t court could not depart downward pursuant to section 1231(a)(4)(B) because the statute does nothing to e xpand its rather limited powers on issues of deportation. In sum, Marin-Castaneda invokes section 1231(a)(4)(B) at th e wrong juncture and directs his argument at the wrong bran ch of government. In fact, Marin-Castaneda does not even have standing to enforce this statute. See Thye v. Unite d States, 109 F.3d 127, 129 (2d Cir. 1997) (holding that Atto rney General's authority to deport "creates no private r ight of action" for a criminal alien because Attorney Gener al must act in best interest of United States, not the crim inal alien). The Attorney General may still exercise her power t o deport Marin-Castaneda before he has completed his sentenc e, but this possibility created no ground for downward dep arture by the district court when it was imposing the sent ence. Consequently, the district court did not err in con cluding 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 downwar d departure. We disagree. First, the Sentencing Commi ssion
has instructed that

[a]ge . . . is not ordinarily relevant in de termining whether a sentence should be outside the app licable guideline range. Age may be a reason to impo se a sentence below the applicable guideline rang e when the defendant is elderly and infirm and where a form of

8punishment such as home confinement might be

equally efficient as and less costly than in carceration.

U.S.S.G. S 5H1.1, policy statement. We have interpr eted 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 o ffered no basis for downward departure). Marin-Castaneda does not assert any extraordinary condition other than the f act that he was 67 years old at the time of sentencing. He d oes not seem to suffer from any unusual impairments for a m an his age; certainly nothing suggesting that home confine ment would be as effective as incarceration. In fact, he had never been hospitalized before his stay at the Bayonne Me dical Center. Appendix at 98 (referring to Presentence Investigation Report P 37). Absent some extraordina ry infirmity, we cannot conclude that the bare fact th at MarinCastaneda was 67 years old would have justified a downward departure by the district court. See Unite d States v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (holding that section 5H1.1 does not permit downward departure fo r 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 Mari nCastaneda's physical ordeal, he has indicated that he was aware of the health risks involved in ingesting her oin prior to his trip. Addendum to Presentence Investigation Report at 14. Thus, the manifest danger in swallowing nine ty pellets of heroin did not deter Marin-Castaneda fro m embarking on this endeavor in the first place. Furt hermore, the physical trauma he experienced, which is inhere nt in smuggling drugs in this manner, could hardly be
considered an unusual characteristic or circumstanc e distinguishing this case "from the `heartland' case s covered by the guidelines." U.S.S.G. S 5K2.0, policy statem ent; see also Koon, 116 S. Ct. at 2046 ("Before a departure is permitted, certain aspects of the case must be foun d unusual enough for it to fall outside the heartland of cases . . . ."). In sum, neither Marin-Castaneda's age no r his physical ordeal presented grounds for a downward departure.

9IV.

Before the district court, Marin-Castaneda argued t hat the three proposed bases for downward departure -- consent to deportation, age and physical trauma -- warrant downward departure collectively, even if they may n ot individually. We find the three bases to be no more compelling collectively than they are individually. Viewed together or separately, these factors do not justif y 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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