                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        OCT 17 1997
                    UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                             Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellant,

 v.                                                    No. 96-2292

 RAPHAEL RODRIGUEZ-VELARDE,

             Defendant-Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. CR-96-164-MV)


Submitted on the briefs:

John J. Kelly, United States Attorney, James T. Martin, Assistant United States
Attorney, Albuquerque, New Mexico, for Plaintiff-Appellant.

Timothy M. Padilla, Albuquerque, New Mexico, Vernon E. Peltz, Tucson,
Arizona, for Defendant-Appellee.


Before BRORBY, BARRETT, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      The only issue on appeal is whether the district court abused its discretion

in granting a downward departure from the sentencing range prescribed by the

United States Sentencing Guidelines (U.S.S.G.) based on defendant’s family

responsibilities. We conclude that the circumstances presented here do not

support the departure and, therefore, we reverse. 1

      On August 8, 1996, defendant pleaded guilty to Count I of a four-count

indictment, which charged him with conspiracy to possess, with intent to

distribute, more than 100 kilograms of marijuana, in violation of 21 U.S.C. § 846,

and with aiding and abetting, in violation of 18 U.S.C. § 2. The presentence

report (PSR) calculated an offense level of 28 and a criminal history category of

III which, when combined, yielded a sentencing range of 97 to 121 months.

      At the sentencing hearing in October 1996, defendant made an oral motion

for a downward departure based on extraordinary family circumstances, namely

the death of his wife. Defendant’s wife was killed in an automobile accident in

June 1996, subsequent to defendant’s arrest, leaving behind three children, aged

six, eight, and eleven. The district court granted the departure, over the

government’s objection, concluding that the death of defendant’s wife during the



      1
             After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

                                         -2-
course of the criminal proceedings was an unusual situation and one that the

Sentencing Commission had not considered in promulgating the Guidelines. The

court, therefore, imposed a sentence of sixty months, which was the statutory

minimum sentence for defendant’s offense. The government now appeals,

arguing that defendant’s family responsibilities are no different than those of

other single parents who are sent to jail and, therefore, do not justify a departure.

      A district court must impose a sentence within the Guideline range unless it

determines “that there exists an aggravating or mitigating circumstance of a kind,

or to a degree, not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result in a sentence

different from that described.” 18 U.S.C. § 3553(b). In making this

determination, the court should consider only the Guidelines, the policy

statements, and the commentary of the Sentencing Commission. Id.

      In Koon v. United States, 116 S. Ct. 2035, 2046-48 (1996), the Supreme

Court held that appellate courts should review a district court’s decision to depart

from the Guidelines under a unitary abuse of discretion standard. We recently

held, in light of Koon, that appellate courts reviewing departure decisions should

evaluate the following:

      (1) whether the factual circumstances supporting a departure are
      permissible departure factors; (2) whether the departure factors relied
      upon by the district court remove the defendant from the applicable
      Guideline heartland thus warranting a departure, (3) whether the

                                          -3-
      record sufficiently supports the factual basis underlying the
      departure, and (4) whether the degree of departure is reasonable.

United States v. Collins, No. 96-5039, 1997 WL 437152, at *5 (10th Cir. Aug. 5,

1997). The first inquiry, whether the factors are permissible for departure, is

“essentially legal,” and our review “should be plenary.” Id. Impermissible

departure factors include “forbidden factors, discouraged factors that are not

present to some exceptional degree, and encouraged factors already taken into

account by the applicable guideline that are not present to some exceptional

degree.” Id. The second inquiry, whether the factual circumstances of the case

make it atypical, is largely factual, and our review is “at its most deferential.” Id.

“We emphasize, however, that all four steps of the departure review are subject to

a unitary abuse of discretion standard.” Id.

      The Sentencing Guidelines provide that “[f]amily ties and responsibilities

and community ties are not ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range.” U.S.S.G. § 5H1.6. Because

family ties and responsibilities are a discouraged factor under the Guidelines, a

district court may depart based on this factor “only if the factor is present to an

exceptional degree or in some other way makes the case different from the

ordinary case where the factor is present,” Koon, 116 S. Ct. at 2045.

      “[O]rdinary family responsibilities can be very great.” United States v.

Dyce, 91 F.3d 1462, 1466 (D.C. Cir.), cert. denied, 117 S. Ct. 533 (1996). In

                                          -4-
addition, “the disintegration of existing family life or relationships . . . is to be

expected when a family member engages in criminal activity that results in a

period of incarceration.” United States v. Canoy, 38 F.3d 893, 907 (7th Cir.

1994). Thus, the circuit courts have uniformly held that family circumstances

cannot form the basis for a departure unless they are extraordinary. See, e.g.,

United States v. Webb, 49 F.3d 636, 638 (10th Cir.), cert. denied, 116 S. Ct. 121

(1995); Canoy, 38 F.3d at 906 (collecting cases). To justify a departure, a

defendant must demonstrate that “the period of incarceration set by the Guidelines

would have an effect on the family or family members beyond the disruption to

family and parental relationships that would be present in the usual case.” Canoy,

38 F.3d at 907.

      Here, defendant made no showing about his family circumstances beyond

the argument of counsel that the death of defendant’s wife had effectively

orphaned defendant’s three children and that her death had created turmoil in the

family about where the children should stay and who should be their guardian.

The PSR reflected that, since the death of their mother, the children had been

living with their maternal grandmother in Tucson, Arizona, and had not had any

contact with defendant.

      While we are not unsympathetic to the circumstances facing defendant’s

children, defendant has not shown that these circumstances are substantially


                                           -5-
different than those facing the minor children of any single parent who is about to

be incarcerated. “A sole, custodial parent is not a rarity in today’s society, and

imprisoning such a parent will by definition separate the parent from the children.

It is apparent that in many cases the other parent may be unable or unwilling to

care for the children, and that the children will have to live with relatives, friends,

or even in foster homes.” United States v. Brand, 907 F.2d 31, 33 (4th Cir.

1990).

         In Webb, 49 F.3d at 638-39, we rejected a defendant’s contention that his

role as the sole caretaker of his minor son, who began experiencing difficulties in

school after the defendant’s incarceration, created an unusual family situation that

justified a departure. Other circuits have also held that a defendant’s status as a

single parent does not constitute an extraordinary family circumstance warranting

departure. See, e.g., United States v. Chestna, 962 F.2d 103, 107 (1st Cir. 1992)

(single mother of four young children, including infant born after sentencing);

United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991) (single mother of

five children, ranging in age from eleven months to eleven years); United States

v. Goff, 907 F.2d 1441, 1446 (4th Cir. 1990) (single mother of three children,

aged seven, six, and two, who would have to live with ill grandmother in another

state during mother’s incarceration); Brand, 907 F.2d at 32-33 (sole custodial

parent of two children, aged seven and eighteen months, younger of which would


                                          -6-
live with grandmother and older of which would live with foster parents in

another state); United States v. Harrison, 970 F.2d 444, 447-48 (8th Cir. 1992)

(widow with adopted granddaughter, aged nine, who would have to live with

mother whom defendant alleged was not competent to care for child because of

“‘her drinking and carousing around and dope’”); Dyce, 91 F.3d at 1467 (single

mother of three young children, including infant who was being breast-fed). But

see United States v. Johnson, 964 F.2d 124, 129 (2d Cir. 1992) (concluding that

defendant, who “was solely responsible for the upbringing of her three young

children, including an infant, and of the young child of her institutionalized

[adult] daughter, . . . faced extraordinary parental responsibilities”).

      Nor is it “atypical for husbands and wives to commit crimes together.”

United States v. Pozzy, 902 F.2d 133, 139 (1st Cir. 1990). That this may result in

a minor child’s loss of both parents through incarceration has not justified a

departure from the Guidelines. See United States v. Carr, 932 F.2d 67, 72 (1st

Cir. 1991) (child four years old at time parents sentenced); Pozzy, 902 F.2d 133,

138-39 (1st Cir. 1990) (child due to be born four months after parents sentenced).

      Because defendant failed to demonstrate that his family ties and

responsibilities are extraordinary, the district court abused its discretion in relying

on this factor to grant a downward departure from the applicable Guideline range.




                                          -7-
Therefore, we VACATE the sentence imposed by the district court, and

REMAND for resentencing within the Guideline range of 97 to 121 months.




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