                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2003

USA v. Elvey
Precedential or Non-Precedential: Non-Precedential

Docket 01-4179




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Recommended Citation
"USA v. Elvey" (2003). 2003 Decisions. Paper 891.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/891


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                                                   NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         No. 01-4179


               UNITED STATES OF AMERICA

                               v.

                    DEAN OMAR ELVEY,
                          a/k/a
                   JORG ARTHUR BETTS,
                                     Appellant




         On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                     (D.C. No. 01-cr-00388)
            District Judge: Hon. Edmund V. Ludwig


           Submitted Under Third Circuit LAR 34.1(a)
                      December 19, 2002

    Before: SLOVITER, McKEE, and ROSENN, Circuit Judges


                    (Filed: January 9, 2003)




                 OPINION OF THE COURT
SLOVITER, Circuit Judge.

        Appellant Dean Omar Elvey pled guilty in the Eastern District of Pennsylvania to a

two count indictment charging one count of illegal reentry after deportation, 8 U.S.C. §§

1326(a) and (b)(2), and one count of possession of a counterfeit passport, 18 U.S.C. §

1546. Elvey does not deny the facts underlying the conviction but appeals because the

District Court denied his motion for a downward departure and sentenced him to 30 months

in prison, 2 years supervised release, and a special assessment of $200. He filed a timely

notice of appeal.

        Because we are writing only for the parties, it is not necessary for us to discuss the

facts in any detail as they are familiar with them. On appeal, Elvey’s only contention is that

he was entitled to a downward departure from the sentencing guidelines based on

extraordinary family circumstances. Elvey, who had pled guilty in May 1999 to the sale or

transportation of marijuana, was deported to Jamaica on March 10, 2000. He claims that he

purchased a false passport and roundtrip plane ticket to Philadelphia, leaving June 7, 2001

and returning June 12, 2001, because his daughter, who was scheduled to graduate from

kindergarten, read him her valedictory speech over the phone and he felt he had to attend

her graduation ceremony.

        He was arrested as he went through customs with a British passport and a false name.

The suspicion of a Customs agent was alerted because of the manner in which Elvey’s

picture had been inserted in substitution of the original picture on the passport. Elvey pled

guilty and sought the downward departure. Although the Government did not dispute any of

                                                     2
Elvey’s factual contentions in the District Court, it evidently was skeptical about the

reasons given by Elvey for his entry and his statements that he would leave a few days

thereafter. The Government opposed Elvey’s departure motion, arguing that Elvey’s claim

that he intended to leave immediately after the kindergarten graduation was not credible. It

also argued that the fact that Elvey’s deportation had deprived him of the opportunity to

attend his child’s school events was not sufficiently extraordinary to merit granting him a

departure.

        The District Court denied the motion for downward departure, stating:

                        I will, for the purpose of this sentencing, accept the facts
                proffered by Mr. Elvey and on his behalf. Under 5H1.6, family ties
                and responsibilities, it says “Family ties and responsibilities and
                community ties are not ordinarily relevant in determining whether a
                sentence should be outside the applicable guideline range.”

                         Ordinarily, family ties and responsibilities refers to
                dependency and need for a defendant’s help and services, which would
                not apply here in any material way. I don’t know if there’s any
                authority that broadens this section beyond that type of dependency.
                But, in any event, I do not find that, under the applicable standard, a
                departure should be granted under this section.

                         As far as the general ground of 5K2.0 is concerned, while this
                is certainly an unusual case based on the facts presented by the
                defense, I do not find that it is sufficient - either by itself or in
                combination with 5H1.6, sufficient to justify a downward departure.

                        The grounds offered for departure, that is to say Mr. Elvey’s
                wanting to be present at his young daughter’s graduation and her being
                honored as the valedictorian, certainly have an emotional appeal. But,
                I do not find that they are so different in degree or kind from all the
                other cases in which a person decides to be an illegal entrant to
                warrant a departure in this case.



                                                 3
                          Under the circumstance, I find that regrettable, but I believe
                 that [ ] is the correct legal determination here. The guideline range is
                 high for this kind of conduct, but the problem involved is a serious
                 one. And, for those reasons, I deny the motion for downward
                 departure.

App. at 43-44 (emphasis added).

        Elvey argues that we should remand because it is unclear whether the District Court

recognized that it had authority to depart. The government takes a completely different

view of the District Court’s statement and we agree. Elvey points to nothing in the

colloquy with the District Court that suggests that the District Court did not recognize that

it had the power to depart for extraordinary family ties and responsibilities. Elvey argues

that because the District Court stated, in rejecting other grounds for departure that defense

counsel advanced, that it was acting “in the exercise of discretion,” but failed to make any

such statement with respect to the requested downward departure for family ties and

responsibilities, the District Court did not recognize its authority.

        We are unwilling to make a general rule that unless the district courts use a magical

phrase, such as “in the exercise of my discretion,” the appeals court will not find that the

district court recognized the scope of its discretion. The law does not turn on such a

technicality. The District Court specifically stated, in the language underlined above, that

even if there were authority that broadened the section beyond the ordinary family ties and

responsibilities cases, it did not find that a departure should be granted under the cited

section. This language certainly demonstrates the District Court’s analysis of the

circumstances and its decision that the circumstances did not warrant a downward

                                                       4
departure.

         Because the District Court assumed that it had the authority to depart, whether under

§ 5H1.6 or § 5K2.0, and chose not to do so, we do not have jurisdiction over Elvey’s appeal

from the failure to depart downward. United States v. DeNardi, 892 F.2d 269, 272 (3d Cir.

1989).

         Even if we were to review the District Court’s decision, we would not find that it

abused its discretion. An illegal reentry for the purpose of watching a daughter graduate

from kindergarten does not constitute an extraordinary family situation. Many persons who

have been deported would like to attend family ceremonies, some more significant than

graduation from kindergarten, such as graduation from college, weddings, or even funerals.

However, as the Government states in its brief, “separation from family members at such

times is part of the price that deported persons must pay for the misconduct that led to

deportation.” The courts have repeatedly upheld the district courts’ denial of a downward

departure for circumstances at least as significant but undoubtedly more so than Elvey’s

desire to observe his young daughter graduate from kindergarten. See, e.g., United States v.

Lipman, 133 F.3d 726, 729 (9th Cir. 1998) (alien reentered to visit his disabled U.S.

citizen daughter who had been sexually assaulted); United States v. Encarnacion, 239 F.3d

395, 400 (1st Cir.), cert. denied, 532 U.S. 1073 (2001) (alien reentered so that he could

see his family and enter drug rehabilitation). We reject Elvey’s contention that the District

Court erred in denying his motion for a downward departure.

         For the reasons set forth above, we will affirm the judgment of conviction and

                                                     5
sentence.

____________________

TO THE CLERK:

            Please file the foregoing opinion


            /s/Dolores K. Sloviter
            Circuit Judge




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