
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-1881                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                GERARDO CLASE-ESPINAL,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                                Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Owen S. Walker, with whom Federal Defender Office was on brief             ______________            _______________________        for appellant.             Donald L. Cabell, Assistant United States Attorney, with whom             ________________        Donald K. Stern, United States Attorney, was on brief for appellee.        _______________                                                                                      ____________________                                    June 19, 1997                                                                                      ____________________                    CYR, Circuit  Judge.   Gerardo Clase  Espinal ("Clase")                    CYR, Circuit  Judge.                         ______________          appeals  the  sentence  imposed  upon him  for  unlawful  reentry          following  deportation.   See  8 U.S.C.     1326(a).   The appeal                                    ___          centers  upon a  novel government  motion for  downward departure          under  U.S.S.G.   5K2.0, which  the district court  rejected.  We          affirm.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    A citizen  of the  Dominican Republic, Clase  was first          deported  from the United States on February 4, 1994, following a          felony conviction in a Texas  state court for cocaine possession.          On October 23, 1995, he was arrested in the United States  again,          and  charged with  unlawful reentry  subsequent to  an aggravated          felony  conviction.   See 8  U.S.C.    1326(b)(2) (1995).   After                                ___          Clase entered a guilty plea, the government agreed to recommend a          downward  departure under U.S.S.G.   5K2.0 in return for a stipu-          lation of  alienage and deportability following  his release from          prison, as well  as waivers  of any deportation  hearing and  any          appeal from the deportation order.                     At sentencing, after Clase represented that he would so          stipulate,  the  government   recommended  a  two-level  downward          departure on the ground  that the stipulation constituted conduct          not contemplated by the  Sentencing Guidelines (or "Guidelines").          See generally  U.S.S.G.   5K2.0.   After rejecting  the requested          ___ _________          section 5K2.0 departure as  beyond its power, the  district court          increased  the base offense  level ("BOL") from  eight to twenty-                                          2          four, pursuant to  U.S.S.G.   2L1.2(b)(2)  (1995), on the  ground          that  the  1994 deportation  had  followed  a conviction  for  an          aggravated felony.                                            II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Clase  appeals  the  resulting forty-six  month  prison          sentence,  challenging both the sixteen-level enhancement imposed          pursuant  to U.S.S.G.   2L1.2(b)(2) and the district court ruling          that it  lacked authority to depart under  U.S.S.G.   5K2.0.  The          government  supports the  section  2L1.2(b)(2)  enhancement,  but          joins  Clase in opposition to the district court ruling denying a          section 5K2.0 departure.           A.   "Aggravated Felony" Enhancement (U.S.S.G.   2L1.2(b)(2))          A.   "Aggravated Felony" Enhancement (U.S.S.G.   2L1.2(b)(2))                ______________________________________________________                    The  prior state  conviction was  ruled  an "aggravated          felony,"  for  section   2L1.2(b)(2)  purposes,  because  cocaine          possession is a felony under Texas  law, see Tex. Health & Safety                                                   ___          Code  Ann.    481.115(f)  (1996),  and  accordingly violates  the          Federal  Controlled Substances  Act,  21 U.S.C.     801 et.  seq.                                                                  ___  ____          Section  2L1.2(b)(2), comment. (n.7), defines "aggravated felony"          as, inter alia, "any drug  trafficking crime . . . defined  in 18              _____ ____          U.S.C.   924(c)(2)."  Section 924(c)(2) defines "drug trafficking          crime"  as, inter  alia, "any  felony punishable  under  the Con-                      _____  ____          trolled Substances Act."1                                          ____________________               1Clase  argues that  Congress  cannot have  intended that  a          state  felony conviction  for  mere drug  possession satisfy  the          "aggravated felony"  requirement under    2L1.2(b)(2),  since the          term  "drug trafficking  offense"  clearly excludes  simple  drug          possession.  As this claim was never raised below, we review only                                          3                    Clase acknowledges  that our recent decision  in United                                                                     ______          States v. Restrepo-Aguilar, 74 F.3d  361, 364-65 (1st Cir. 1996),          ______    ________________          forecloses the present claim, but urges nonetheless that the term          "felony,"  as used  in 18  U.S.C.    924(c)(2),  encompasses only          offenses which would constitute felonies  under federal law.   As          Restrepo-Aguilar directly controls,  and Clase offers  no tenable          ________________          basis for disregarding stare  decisis, we decline to  revisit the                                 _____  _______          matter.  See, e.g., Williams v.  Ashland Eng'g Co., Inc., 45 F.3d                   ___  ____  ________     _______________________          588, 592 (1st  Cir.) (noting that First  Circuit panels generally          are bound by  a prior  panel decision directly  on point),  cert.                                                                      ____          denied, 116 S. Ct. 51 (1995).          ______          B.   Downward Departure Under U.S.S.G.   5K2.02          B.   Downward Departure Under U.S.S.G.   5K2.0               _________________________________________                    On  April 28, 1995, the  Attorney General of the United          States  disseminated a memorandum  ("the Memorandum") authorizing          United  States  Attorneys  to  recommend a  departure  below  the          applicable guideline sentencing range  in return for an admission          of alienage and deportability, as well as waivers of any adminis-                                        ____________________          for "plain error."   United States v. Olivier-Diaz, 13  F.3d 1, 5                               _____________    ____________          (1st Cir. 1993).               Not surprisingly, error cannot be considered "plain" unless,          among  other things, it is "obvious."   Id.  Since this court has                                                  ___          already rejected the very contention asserted by Clase on appeal,          see  United States v. Restrepo-Aguilar, 74 F.3d 361, 364 n.5 (1st          ___  _____________    ________________          Cir. 1996), we are  in no position to conclude that  the district          court ruling constituted "plain error"  in these parts.  Olivier-                                                                   ________          Diaz,  13  F.3d  at  5.    The  remaining  challenges  to  the             ____          2L1.1(b)(2) ruling merit no discussion.               2Although a refusal to  depart is not ordinarily appealable,          see United States v. Tucker, 892 F.2d 8, 11 (1st  Cir. 1989), the          ___ _____________    ______          rule is otherwise if, as here, the district court refused  on the          ground that it lacked the authority to depart.  See United States                                                          ___ _____________          v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991).             ______                                          4          trative  deportation hearing  and  any judicial  appeal from  the          resulting  deportation order.   The  Memorandum indicates  that a          downward departure based on such cooperative conduct on  the part          of  alien  criminal defendants  is  permissible because  it  is a          "mitigating circumstance  of a kind,  or .  . . degree,  not ade-          quately taken into consideration by the Sentencing Commission . .          . .").                    The United  States Attorney for the  District of Massa-          chusetts accordingly  recommended a two-level  downward departure          under  section 5K2.0 based on the agreement by Clase to stipulate          to  deportation and waive any related appeal.  The district court          rejected the recommendation.                          I   am  not  satisfied  that  there  are                    grounds within Section 5K2.0 to permit depar-                    ture based upon .  . . a representation [that                    Clase would stipulate to  deportation, etc.].                    I make that determination as a matter of law.                    _ ____ ____ _____________ __ _ ______ __ ___                    If I have such  power, then I need to  be in-                    structed that I do  by another court . .  . .                    [U]pon  my  own independent  determination, I                    find  the use  of Section  5K2.0 to  permit a                    downward departure on the  basis of the  con-                    cession of deportability and an agreement not                    to contest it is not  a matter that was  left                                     ___  _ ______           ____                    unconsidered  by  the Sentencing  Commission.                    ____________                    Certainly, the specific factual circumstances                    were not considered by the Sentencing Commis-                    sion, but the larger issue of deportation and                    the mechanisms for deportation, agreements to                    ameliorate the difficulties that are adminis-                    trative  burdens for the government, are mat-                    ters  within  the  scope of  the  "heartland"                    calculations  of  the Sentencing  Commission,                    generally,  and  in connection  with deporta-                    tion.                         I view the  Attorney General's  willing-                         _ ____ ___  ________ _________  ________                    ness, in  certain circumstances, to  agree to                    ____  __  _______ _____________  __  _____ __                    such a  downward departure to be  in the form                    ____ _  ________ _________ __ __  __ ___ ____                    of  a  shadow sentencing  guideline, unautho-                    __  _  ______ __________  _________  ________                                          5                    rized  by  relevant  law[,]  which  allocates                    _____  __  ________  ___                    responsibilities  in this  area and  [is] not                    entitled to any particular weight.  (Emphasis                    added.)3                    As posed by  the parties and addressed by  the district          court, therefore, the  question before us turns  upon an abstract          legal principle:  whether the stipulation and waiver relating  to          alienage and deportability permit a section 5K2.0 departure based          on the conclusory departure  rationale propounded in the Memoran-          dum.                    The government and the  defendant insist on appeal that          the stipulation and waiver relating to alienage and deportability          remove  the  case from  the "heartland."    See United  States v.                                                      ___ ______________          Rivera,  994 F.2d  942, 947 (1st  Cir. 1993) (Breyer,  C.J.).  We          ______          agree  that  the  proffered  departure ground  is  not  expressly          forbidden,  discouraged, or encouraged  by the  Sentencing Guide-          lines.  See Koon v.  United States, 116 S. Ct. 2035,  2045 (1996)                  ___ ____     _____________          (quoting Rivera, 994 F.2d at 949); see  also U.S.S.G.    5H1.1                      ______                    ___  ____          5H1.12;  5K2.1     5K2.18.  Yet  we agree with the district court          that it is insufficient, as  a matter of law, to warrant  a down-          ward departure.                                         ____________________               3Generally speaking,  a decision  not to depart  is reviewed          only for  abuse of discretion.  Koon v. United States, 116 S. Ct.                                          ____    _____________          2035,  2046-47 (1996); United States v. Cali, 87 F.3d 571, 579-80                                 _____________    ____          (1st Cir. 1996).   Nevertheless, as noted in Koon,  "[a] district                                                       ____          court  by definition abuses its discretion when it makes an error          of law."  116 S. Ct. at 2047.  Moreover, the government agreed it          was  "essentially taking a legal  position . .  . that stipulated          deportations are, as a matter of law, something not fully contem-          plated by the  Sentencing Commission  in the  preparation of  the          guidelines and  subject to  a downward departure  through Section          5K2.0."  Therefore, the district court ruling must be reversed if          it constituted legal error.                                          6                    The sentencing  court may resort for  decisional assis-          tance to  28 U.S.C.     991-998 (i.e., the  Sentencing Commission                                           ____          enabling act itself), 18 U.S.C.   3553, the Guidelines, including          the  policy statements  and official  commentary, as  well  as to          relevant case law.  Moreover, courts must bear in mind the expert                       .          Sentencing Commission ("Commission")  assessment that  departures          based  on judicial  determinations  that a  proffered ground  for          departure  was not adequately considered by the Commission are to          be regarded  as "highly infrequent."  See  U.S.S.G. Ch. 1, pt. A,                                                ___          intro. comment. 4(b); see also Koon, 116 S. Ct. at  2045.  Absent                                ___ ____ ____          a guideline or commentary  directly addressing a proffered ground          for  departure, therefore,  sentencing  courts must  examine  the          "structure and theory of [the] relevant individual guidelines and          the  Guidelines taken as  a whole,"  with a  view to  whether the          proffered ground  makes the case sufficiently  atypical to remove          it  from the  "heartland."   Koon, 116  S. Ct.  at 2045  (quoting                                       ____          Rivera, 994 F.2d at 949).          ______                    1.   Whether Stipulated Deportation Constitutes                    1.   Whether Stipulated Deportation Constitutes                         __________________________________________                         a Mitigating Circumstance "of a kind" Not                         a Mitigating Circumstance "of a kind" Not                         _________________________________________                         Contemplated by the Sentencing Commission?                         Contemplated by the Sentencing Commission?                         _________________________________________                    An aggravating or mitigating circumstance  falls within          the "heartland" unless it  is "of a kind" not  adequately consid-          ered by the Commission  or "present to a degree"  neither readily          envisioned  nor often seen in connection with such an offender or          offense  of  conviction.   See 18  U.S.C.    3553(b);  U.S.S.G.                                       ___          5K2.0; United States v. Sklar, 920 F.2d 107, 115 (1st Cir. 1990).                 _____________    _____          We are loath to presume, as a general matter, that the Commission                                          7          either overlooked  or inadequately  considered the  statutory and          regulatory structures upon which an informed sentencing treatment          of  immigration  offenses  significantly  depended.   See,  e.g.,                                                                ___   ____          U.S.S.G.    2L1.2  comment.  (citing to  8  U.S.C.    1326);  id.                                                                        ___          comment. (n.4) (describing 16-level enhancement for alien  previ-          ously deported after conviction  for aggravated felony).  Rather,          given  its mandate, see 28 U.S.C.    994, as well as its institu-                              ___          tional expertise  and experience, see id.    995, we think  it is                                            ___ ___          quite clear  that the  Commission would  have considered  that an          alien defendant, particularly  one convicted of unlawful  reentry                                                          ________  _______          subsequent  to  deportation  for  an  aggravated  felony,  almost          certainly would be deported again.  See 8 U.S.C.    1251(a)(1)(B)                                              ___          (alien  who has entered without inspection),   1251(a)(2)(A)(iii)          (alien  convicted of  aggravated felony  after  admission) (1996)          (amended sections  presently codified at 8 U.S.C.   1227 (1997)).                    Furthermore,  we  believe  it  would be  farfetched  to          suppose that  the Commission overlooked the  central reality that          in all likelihood deportation would occur by normal operation  of          law   as  a  matter  of  course      irrespective  of  the  alien                                               ____________  __  ___  _____          defendant's consent    following a conviction for illegal reentry          ___________ _______          subsequent  to deportation for an  aggravated felony.  Cf. United                                                                 ___ ______          States v. Restrepo, 999 F.2d 640, 647 (2d Cir.) (even absent  any          ______    ________          indication  in the  Guidelines  that Congress  or the  Commission          "considered  the interplay  between deportability  and sentencing          provisions," deportability is not a ground for departure because,                                          8          among other reasons, "it is difficult to believe that the Commis-          sion was not  conscious that  a large number  of defendants  sen-          tenced in the federal courts are aliens"), cert. denied, 510 U.S.                                                     _____ ______          954 (1993); United  States v. Ceja-Hernandez,  895 F.2d 544,  545                      ______________    ______________          (9th Cir. 1990) (per curiam) ("When setting the offense level for                           ___ ______          entry after deportation, the Sentencing Commission would certain-          ly have been aware  of the practice of promptly  deporting aliens          after they serve such sentences.").                      Similarly,  the  facilitative   nature  of   stipulated          deportations does not  strike us  as a circumstance  "of a  kind"          left unconsidered  by the  Commission.  Several  guidelines treat          stipulated deportations in the same manner as formal deportations          for purposes  of subsequent  prosecution.  For  example, sections          2L1.1(b)(3) and 2L2.2(b)(1) identify a prior deportation, whether          voluntary or involuntary, as a "specific offense" characteristic.          See also U.S.S.G. App. C, amend.  196 (1995) (likewise discussing          ___ ____          voluntary as  well as involuntary deportations).   Although these          provisions simply indicate that prior deportations,  voluntary as          well as  involuntary, are aggravating  "specific offense" charac-          teristics,  their presence in the Guidelines conspicuously demon-          strates  Commission awareness  not  only  that  numerous  illegal          aliens  become enmeshed in the  criminal justice system, but that          many are expelled from the United States  without ever undergoing          formal  deportation  proceedings.4    Moreover, given  the  large                                        ____________________               4See Immigration and  Naturalization Serv. v. Lopez-Mendoza,                ___ _____________________________________    _____________          468  U.S. 1032, 1044  (1984) (noting that  approximately 97.5% of          all illegal aliens are deported from the United States voluntari-                                          9          numbers of illegal  aliens expelled from  the United States  each          year  without  undergoing  formal  deportation  proceedings,5  we          consider  it  exceedingly improbable  that the  Commission either          overlooked  stipulated  expulsions altogether  or  regarded their          facilitative  value  to  be  "of a  kind"  warranting  a downward          departure.   These analogous data indicate that an alien criminal          defendant with  no plausible basis for  contesting deportation             particularly  one  convicted  of illegal  reentry  subsequent  to          deportation  for  an  aggravated  felony     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.   Cf.  United States  v.                                                     ___  _____________                                        ____________________          ly with no formal  adjudication of status by the  Immigration and          Naturalization Service ["I.N.S."]).  Indeed, the data consistent-          ly indicate that only about 3% of all apprehended aliens  who are          expelled ever undergo a deportation hearing.  See Immigration and                                                        ___          Naturalization  Service,  1993  Statistical  Yearbook  158 tbl.59                                    ___________________________          (1994);  Immigration and Naturalization Service, 1987 Statistical                                                           ________________          Yearbook 124 tbl.70 (1988) (tables reflecting that, in 1993, only          ________          about 3% of all  apprehended aliens required to leave  the United          States were deported after  a hearing.   The data are similar  in          other years:  3.3% in 1992, 2.6% in 1991,  and 2% in 1987.).  The          vast majority of illegal aliens are subjected to a nonadversarial          procedure known as "voluntary departure with safeguards"  (admis-          sion of  illegal status,  agreement to  leave,  and retention  in          custody  pending  a voluntary  departure  observed  by an  I.N.S.          agent) or submit to  a "required departure under  docket control"          (after  I.N.S. officer  starts  deportation  file,  alien  admits          illegal  status and  accepts voluntary  departure).   See  id. at                                                                ___  ___          xxxix.  I.N.S.  does not publish data regarding stipulated depor-                                                                     ______          tations, as distinguished from stipulated departures requiring no          _______          formal administrative adjudication.               5In  1991,  for example,  28,759  aliens  were deported  and          1,060,745 were  required to depart (totaling 1,089,504 expelled).          1993 Statistical Yearbook 158 tbl. 59; 1992:  38,202 deported and          _________________________          1,105,160 required to depart  (totaling 1,143,362 expelled), id.;                                                                       ___          1993:  36,686 deported and 1,242,169 required to depart (totaling          1,278,855 expelled), id.                                ___                                          10          Barber,  93  F.3d 1200,  1205  (4th Cir.  1996)  (vacating upward          ______          departure  for  using firearm  to  effect  second degree  murder,          because  "Commission could not have failed to take into account .          . . that that offense is commonly committed by use of a gun . . .          .  No scenario could be  more typical, more within the heartland,          of second-degree  murder than  death by  one  weapon or  another,          especially by firearm.").6                    We  therefore conclude  that the  Sentencing Commission          was fully cognizant that virtually all alien criminal defendants,          convicted under  8 U.S.C.     1326(a) and  sentenced pursuant  to          U.S.S.G.   2L1.2, would be subjected to deportation and that many          undoubtedly  would stipulate  to  deportation.   Accordingly,  we          hold, at  least  in  the absence  of  a  colorable,  nonfrivolous          defense to  deportation, that the proffered  ground for departure          under U.S.S.G.   5K2.0  does not constitute a mitigating  circum-          stance of a kind not adequately considered by the Commission.                 __ _ ____                    2.   Whether the Stipulated Deportation                    2.   Whether the Stipulated Deportation                         __________________________________                         Constituted Mitigation "to a degree"                         Constituted Mitigation "to a degree"                         ___________________________________                         Not Contemplated by the Commission?                         Not Contemplated by the Commission?                         __________________________________                                        ____________________               6An  analogous  guideline  provision  likewise  bolsters our          assessment.    Section  3E1.1(a)  permits  a  two-level  downward          adjustment for clearly demonstrating acceptance of responsibility          for the offense of  conviction.  U.S.S.G.   3E1.1(a).   Neverthe-          less, "a defendant  who .  . . frivolously  contests []  relevant                                         ___________  ________          conduct  that the  court  determines to  be true  has acted  in a          manner inconsistent with acceptance of responsibility."  Id. com-                                                                   ___          ment. (n.1(a)) (emphasis added).   By the same token, we  think a          downward departure for simply stipulating  to deportation follow-          ing a conviction for illegal  reentry subsequent to an aggravated          felony, unaccompanied by any  suggestion that the alien defendant          possessed a nonfrivolous defense  to deportation, would represent                      ___          a  disproportionate  reward  for  whatever  modest administrative          benefit might obtain.                                           11                    A mitigating  circumstance is  present to a  degree not          contemplated by the Commission only if it is portentous enough to          make  the case meaningfully atypical.   United States v. Mariano,                         ____________             _____________    _______          983  F.2d 1150, 1154 (1st Cir. 1993) (  5K2.0 serves as a "safety          valve" for  "important, atypical"  factors which remove  the case          from the "heartland");   Sklar,  920 F.2d at  115 n.7  (proffered                                   _____          circumstance  "must have  weight . .   . it  must be sufficiently          portentous to move the case out  of the heartland for the offense          of conviction.");  United States v.  Williams, 891 F.2d  962, 967                             _____________     ________          (1st  Cir.  1989)  ("departures  must be  based  upon  meaningful                                                                 __________          atypicality; . . . judges can always flyspeck individual cases to          ___________          find some  sort of idiosyncracy. .  . . If the  guidelines are to          provide  a  coherent system  of  criminal  sentencing, the  trial          court's right to depart, up or down, must  be restricted to those          few instances  where some  substantial atypicality can  be demon-                                     ___________ ___________         ______          strated.") (emphasis added).          _______                    Absent some mitigating circumstance not suggested here,          no substantial atypicality is  demonstrated where an alien defen-          dant simply stipulates to deportation and no nonfrivolous defense          to deportation  is discernible.   Compare United States  v. Khan,                                            _______ _____________     ____          920 F.2d 1100, 1107 (2d Cir. 1990) (discussing potential downward          departure for saving government  informant's life), cert. denied,                                                              _____ ______          499   U.S.  969  (1991).    As  the  district  court  noted,  the          government's  conclusory  departure recommendation,  simpliciter,                                                               ___________          does  not purport  to demonstrate  that the  facilitative conduct          relied  upon even  constituted substantial  assistance warranting                                          12          sentencing  leniency.   Cf. United States  v. Cardenas,  896 F.2d                                  ___ _____________     ________          317,  320 (8th  Cir.  1990) (holding  that government's  acknowl-          edgement that defendant accepted personal responsibility does not          control  sentencing determination); United  States v. Nunley, 873                                              ______________    ______          F.2d 182,  187 &  n.6 (8th  Cir. 1989)  (same); United  States v.                                                          ______________          Forbes,  888 F.2d 752, 754 (11th Cir. 1989) (sentencing court not          ______          bound by government stipulation that defendant was minor partici-          pant).  Consequently, there is no indication that any administra-          tive  convenience  to  the government  constituted  a  mitigating          circumstance  "to  a degree"  not  adequately  considered by  the          Commission.  See United States v. Romolo, 937 F.2d 20, 24-25 (1st                       ___ _____________    ______          Cir. 1991); Sklar,  920 F.2d at 115.  More  to the present point,                      _____          the stipulation in this  case must be considered de  minimis from                                                           __  _______          the standpoint  of its assistance in  alleviating any administra-          tive burden upon the  government, since Clase has no  discernible          defense to deportation.                     Thus,  the  parties  essentially  are left  with  their          implicit contention  that any stipulated  deportation constitutes                                    ___          an  extraordinary mitigating  circumstance,  for no  other reason          than  that it  bears the  government's endorsement  and dispenses          with an  administrative hearing.   However, were  downward depar-          tures permitted  simply on the conclusory  representations in the          Memorandum, without regard to whether  the alien defendant has  a          nonfrivolous  defense  to  deportation, individualized  guideline          sentencing indeed could be undermined by  what the district court          aptly termed a "shadow guideline" that would erode the prescribed                                          13          BOL in  any alien-criminal defendant's case to  which the govern-          ment chose to apply the Memorandum, simpliciter.7                                               ___________                    The district court prudently recognized that sentencing          courts may not defer to unsubstantiated prosecutorial recommenda-          tions  as adequate grounds for section 5K2.0 departures.  We note          as  well that  even  the indispensable  government  motion for  a          "substantial  assistance" departure under U.S.S.G.   5K1.1 simply          presents the matter for judicial consideration.  See Mariano, 983                                                           ___ _______          F.2d at 1155 ("[T]he decision whether to depart after the govern-          ment  has made such a [  5K1.1 substantial assistance] motion . .          .  falls squarely within the  district court's domain.   The dis-          trict  court is not obligated to depart downward simply because a          grateful prosecutor prefers a  lighter sentence.").  The district          court correctly determined that it lacked authority  to depart on          the ground that the stipulated deportation constituted mitigation          to  a degree neither readily envisioned nor often seen in connec-          tion  with  such  an offender  or  offense  of  conviction.   See                                                                        ___          Mariano, 983 F.2d at 1154; Sklar, 920 F.2d at 115 n.7.          _______                    _____                                         III                                         III                                      CONCLUSION                                      CONCLUSION                                      __________                    With no  record indication  that this case  is meaning-          fully  atypical  in any  material respect,  see  id. at  115, the                                                      ___  ___                                        ____________________               7The Memorandum itself  simply announces that the  "Adminis-          tration  is committed  to effecting  the deportation  of criminal          aliens  from the United States as expeditiously as possible.  You          [i.e., United States Attorneys] can make a major  contribution to           ____          this effort by effectively  using available prosecutive tools for          dealing with alien defendants."  See also pp. 4-5 supra.                                           ___ ____         _____                                          14          section 5K2.0 departure recommendation  lacked a cognizable legal          basis.   Accordingly, it  is unnecessary  to determine  whether a          stipulation  of  alienage and  deportability, accompanied  by the          attendant  waivers,  may ever  serve  as an  adequate  ground for          downward departure under section 5K2.0.   See Koon, 116 S. Ct. at                                                    ___ ____          2051 ("with few exceptions, departure factors should not be ruled          out on a categorical basis").                    The district court judgment is affirmed.                     _______________________________________                                          15
