
USCA1 Opinion

	




          February 17, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1771                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                 VICTOR FELIZ-CUEVAS,                                Defendant, Appellant.                                 ___________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ____________________               Miriam  Conrad,  Federal  Defender  Office,  on  brief   for               ______________          appellant.               Robert E. Richardson,  Assistant United States  Attorney and               ____________________          A. John  Pappalardo,  United   States  Attorney,  on  brief   for          ___________________          appellee.                                 ____________________                                 ____________________                    TORRUELLA, Circuit  Judge.   Defendant-appellant Victor                               ______________          Feliz-Cuevas ("Feliz") was indicted in the United States District          Court for the District of Massachusetts for unlawful reentry into          the United States following deportation, in violation of 8 U.S.C.             1326.    Feliz pleaded  guilty  to  the  indictment.   At  the          sentencing hearing, Feliz moved for a downward departure from the          applicable  sentencing guideline range,  which was denied  by the          district court.  Smith now appeals this denial.  We affirm.                                      I.  FACTS                                      I.  FACTS                    On February 7, 1992, the Immigration and Naturalization          Service ("INS") ordered Feliz deported to the Dominican Republic.          On February 11, 1992, immigration officials gave Feliz INS Form            I-294, which advised Feliz that:                       any deported person who within five years                      returns without permission is guilty of a                      felony.   If convicted he may be punished                      by imprisonment  of  not  more  than  two                      years  and/or a  fine  of  not more  than                      $1,000.00.          Feliz  read and signed  the document,  acknowledging that  he had          received it.                    INS Form I-294  only set forth the  penalties generally          applicable to  a violation of 8 U.S.C.    1326, but did not state          the  more severe  penalties  that applied  to  aliens, who,  like          Feliz, had been convicted of an aggravated felony.  In fact,  the          penalty which  Feliz would face  if he illegally returned  to the          United States  without permission was  imprisonment for up  to 15          years.                    Feliz  then   reentered  the  United  States   and  was                                         -2-                                          2          arrested.   On  October  23,  1992, the  grand  jury returned  an          indictment charging Feliz with a violation of 8 U.S.C.    1326(a)          and 1326(b)(2),  illegal reentry after deportation  subsequent to          being convicted of an aggravated felony.  Feliz pleaded guilty on          March 16, 1993.                    With  respect to sentencing, Feliz moved for a downward          departure  from   the  applicable  sentencing   guideline  range,          contending  that  a  mitigating  circumstance  warranted  such  a          departure.  Feliz  submitted an affidavit which stated  that as a          result of  the INS giving  him Form  I-294, he believed  that the          maximum  penalty for reentering the United  States was two years'          imprisonment; that he  did not know that the  maximum penalty was          fifteen years'  imprisonment;  and that,  had he  known that,  he          would not have returned to the United States.                      At the sentencing on May 26, 1993, the district court          held an evidentiary hearing to determine whether Feliz had relied          on  INS Form I-294  when he decided  to return unlawfully  to the          country.  Feliz testified that he relied  on the INS form for his          belief that he faced no  more than two years' imprisonment if  he          reentered the United States.   Feliz also testified that he would          not have  returned to  the United  States had  he known  that the          maximum penalty he would face was 15 years, or that the guideline          sentencing  range was  46-57 months.   The district  court denied          Feliz's motion for  a downward departure and sentenced  him to 46          months in prison.                                   II.  SENTENCING                                   II.  SENTENCING                                         -3-                                          3                    Feliz  challenges the  district court's  denial  of his          motion for  a downward departure  from the  sentencing range  set          forth in the Sentencing Guidelines.   Feliz argues that by virtue          of INS Form I-294, the government erroneously informed him of the          consequences  of  returning  unlawfully to  the  country.   Smith          submitted an affidavit and testified  that he relied upon the INS          form when he decided  to return to the United States.  Therefore,          Feliz contends  that this  constituted a mitigating  circumstance          that the Sentencing Commission had not taken into account when it          formulated the guidelines, and it warranted a downward departure.          Feliz argues that  the district court erroneously  concluded that          it lacked  the  legal  authority to  depart  from  the  guideline          sentencing range based on the INS notice.                    The   government  argues   that   the  district   court          understood  that it  had the  power to  consider whether  the INS          notice  provided a  ground  for  departure  from  the  Sentencing          Guidelines, but it  refused to exercise its  discretion to depart          downward.                    Generally, a  district  court's decision  to refuse  to          exercise  its discretion to  depart downward from  the sentencing          guidelines is  not appealable.   United States v. Smith,  No. 93-                                           _____________    _____          1722, slip  op. at 10  (1st Cir.  Jan. 28,  1994) (citing  United                                                                     ______          States  v. Lombardi,  5 F.3d  568,  571 (1st  Cir. 1993);  United          ______     ________                                        ______          States v. Rushby,  936 F.2d 41, 42 (1st Cir.  1991)).  "Appellate          ______    ______          jurisdiction  may  attach, however,  where  the  district court's          decision not to depart is based on the court's view that it lacks                                         -4-                                          4          the legal authority to consider a departure."  Smith, slip op. at                                                         _____          10.                    As a preliminary matter, the record seemingly indicates          that the district court concluded  as a factual matter that Feliz          did not  rely on the  INS notice when  he decided to  reenter the          United   States.1    Moreover,  the  record  indicates  that  the          district  court  did  not  believe  that this  was  the  kind  of          circumstance  that justified  a downward  departure.   Thus,  the          district  court  refused  to exercise  its  discretion  to depart          downward, and this decision is not appealable.                    The record, however, could also be read to  support the          conclusion that the  district court believed  that it lacked  the          legal authority to  depart under the Guidelines based  on the INS          notice.  We will  therefore review the district court's  decision          in light of Smith, No. 93-1722 (1st Cir. Jan. 28, 1994), where we                      _____          recently considered this precise issue.                    In Smith,  we stated that  we did not believe  that the                       _____          Sentencing Commission considered  an unusual  situation like  the          INS  giving  an  individual  being  deported  Form  I-294,  which          misstated  the  penalty  for  reentry,  when  it  formulated  its          guidelines.  Id.  at ll.  We found, however,  that this situation                       __                                        ____________________          1   Feliz also argues that the district court's denial of Feliz's          motion for  a downward  departure resulted from  an error  of law          regarding the standard  to be used  in determining whether  Feliz          reasonably relied upon INS Form I-294.  Feliz' estoppel argument,          which  involves the  question  of  whether  Feliz'  reliance  was          reasonable,  is inconsequential  in light  of  our decision  that          Feliz'  reliance  on  Form  I-294  was simply  not  the  kind  of          circumstance that could warrant a downward departure.                                         -5-                                          5          did  not present  the  kind of  circumstance  a sentencing  court          should  consider to support a downward  departure, because it was          antithetical  to the purposes of  the sentencing system, which is          to  deter criminal  conduct.   Id.  at 11-12.    Feliz, like  the                                         __          defendant in  Smith,  implicitly admitted  that he  intentionally                        _____          committed a felony.                      The sentencing  court cannot  countenance                      [the defendant's] purposeful  decision to                      engage  in felonious  conduct, and  grant                      him the benefit  of a downward departure,                      because  [the  defendant]  understood the                      penalty he  would face  to be  relatively                      minor.  Rather,  the sentencing court was                      required  to  sentence   [the  defendant]                      within the  applicable sentencing  range,                      so that [the  defendant] and others would                      be deterred from illegally reentering the                      country in the future.          Id.  at 12.   Therefore,  the district  court's denial  of Feliz'          __          motion for a  downward departure was proper, and  its decision is          affirmed.                       Affirmed.                    ________                                         -6-                                          6
