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


9-22-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4369




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                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 02-4369


                        UNITED STATES OF AMERICA,

                                       v.

                         CARLOS ENRIQUE JIMINEZ,
                         a/ka/ VICTOR PEREZ-VIERA,

                                Carlos Jimenez,

                                            Appellant


                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 00-cr-00659)
                      District Judge: Hon. Louis H. Pollak


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                              September 15, 2003

             BEFORE: MCKEE, SMITH and COWEN, Circuit Judges

                           (Filed September 22, 2003)


                                   OPINION


COWEN, Circuit Judge.
        Carlos Enrique Jimenez1 appeals from the judgment of conviction and sentence of

the United States District Court for the Eastern District of Pennsylvania. We will affirm.

                                              I.

        Jimenez was discovered as a stowaway aboard a Turkish vessel in Philadelphia,

Pennsylvania. A citizen and national of the Dominican Republic, he had previously been

deported from the United States after a conviction for a crime of violence carrying a term

of imprisonment of at least one year. On October 26, 2000, a grand jury indicted Jimenez

for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He pled

guilty to this offense on December 19, 2000.

        Jimenez appeared for a sentencing hearing on November 22, 2002. The

presentence investigation report stated that Jimenez’s total offense level was 21 and his

criminal history category was V. The resulting sentencing range was 70 to 87 months.

Although not objecting to these calculations, Jimenez sought a downward departure on

three grounds. He first argued that such a departure should be granted because of his

extraordinary efforts at rehabilitation pursuant to United States v. Sally, 116 F.3d 76 (3d

Cir. 1997). The defense submitted documents indicating his participation in several

programs at the Federal Detention Center in Philadelphia after his offense. Jimenez also

claimed extraordinary family circumstances. His wife and two sons provided evidence to




   1
       The caption incorrectly indicates that this surname is “Jiminez.”

                                              2
support this second basis of departure.2 Finally, he asserted that, even if these separate

grounds were rejected, the District Court should find that a combination of his

rehabilitative efforts and family circumstances justified departing from the otherwise

applicable sentencing range.

        The District Court questioned whether any departure could be granted in this case

on the basis of either the Sally doctrine or Jimenez’s family ties. The District Court then

discussed with the prosecutor the policy reasons supporting the incarceration of a person

for an extended period even though he or she will be deported. Jimenez reiterated his

assertion that a combination of these factors justified a departure, and the District Court

noted that it understood this contention.

        Before rendering its decision, the District Court summarized the assertions based

on extraordinary efforts at rehabilitation and family connections as well as the “aggregate

argument” in which these two factors are “taken together.” App. at 31. Jimenez’s

participation in several prison programs did not meet the requisite “level of extraordinary

rehabilitative achievement.” App. at 32. With respect to his family ties, the District

Court likewise found that the sympathetic testimony of family members failed to remove

this case from the otherwise applicable sentencing range.




   2
       Letters from these individuals were also submitted to the District Court.

                                               3
       The District Court then turned to Jimenez’s aggregate argument as well as its own

doubts as to the policy of imprisoning for six or seven years an individual facing eventual

deportation. It specifically noted:

       [The defense counsel] has urged that the two ingredients should be put
       together, and that in combination they would warrant a downward
       departure. If I thought that there was a persuasive basis in law for acceding
       to that argument, I would find it very appealing for the reason that, as I have
       explained in my colloquy with [the prosecutor], I find it -- I find it a very
       difficult Government policy to defend, to place somebody in prison for six
       or seven years as would be called for by the [United States Sentencing]
       Guidelines and then to deport him.

App. at 33. It suggested that a lesser term of imprisonment could likewise advance the

government’s objective of discouraging illegal reentry into this country. The District

Court, however, found:

       [T]he Guidelines representing the Sentencing Commission’s
       implementation of the responsibilities delegated to it by Congress, call for
       this -- these results. As I’ve said, I would be receptive to [the defense
       counsel’s] argument that somehow in combination these two grounds for
       departure, each of which seem to be legally insufficient separately, would --
       would warrant a downward departure, but I find no basis in the Guidelines
       for saying so.

App. at 34. It reiterated the ordinary nature of Jimenez’s positive attempts at

rehabilitation and his strong family connections, emphasizing that these factors did not

rise to the level necessary for departure. The District Court accordingly concluded:

              And so I find myself -- not at all happy about it -- coming to the
       conclusion that under the Guidelines, it would for me be an abuse of
       discretion to depart downwardly on either -- on either of the two bases
       urged by [the defense counsel], the post-offense rehabilitation or the special


                                             4
       family relationships or to grant a voluntary departure on a combination of
       the two.

App. at 35-36.

       Jimenez was sentenced to a term of imprisonment of 70 months, supervised release

for two years, and a $100.00 special assessment. The District Court, in discussing the

right to appeal, additionally noted:

       If the defendant can persuade the Court of Appeals that there is an abuse of
       discretion in not departing downward under the circumstances or an error of
       law in my conclusion that the aggregation of the two proposed grounds of
       downward departure, neither of which seem to me separately applicable,
       that the aggregation of them did not strengthen the case, then that may be
       challenged either as an abuse of discretion or as an error of law.

App. at 36. Jimenez appealed.

                                              II.

       Jimenez contends that the District Court erroneously believed that it did not

possess the authority to depart downward based on a combination of factors. We lack

jurisdiction to review a district court’s discretionary refusal to grant a downward

sentencing departure where the district court was aware of its power to order such a

departure. See, e.g., United States v. McQuilkin, 97 F.3d 723, 729 (3d Cir. 1996). We do

possess appellate jurisdiction to consider the claim that the district court committed legal

error in refusing to depart because it believed that it lacked the legal authority to do so.

See, e.g., United States v. Georgiadis, 933 F.2d 1219, 1222 (3d Cir. 1991); United States

v. Denardi, 892 F.2d 269, 271 (3d Cir. 1989). “If the district court’s stated reasons are


                                               5
ambiguous -- so that the record does not reflect whether the court’s denial is based on

legal or discretionary grounds -- then the proper remedy is to ‘vacate the sentence and

remand for the district court to clarify the basis for its ruling.’” United States v. Stevens,

223 F.3d 239, 247 (3d Cir. 2000) (quoting United States v. Mummert, 34 F.3d 201, 205

(3d Cir. 1994)).

       The District Court sufficiently acknowledged its power to depart on the basis of a

combination of factors. It clearly considered Jimenez’s “aggregate argument.” App. at

31. The District Court was apparently sympathetic and receptive to this argument, and it

also indicated that Jimenez could challenge on appeal its conclusion concerning

aggregation “as an abuse of discretion or as an error of law.” App. at 36. Many of its

comments, however, seem to relate to its criticism of the policy behind imprisoning a

person for six or seven years even though he or she will then be deported. Although

discussed together with the aggregation argument, such policy concerns do not appear

related to the question of whether the combined effect of Jimenez’s rehabilitative

activities and his family responsibilities supported a departure. Finding “no basis in the

Guidelines,”App. at 34, the District Court specifically ruled that it would be an abuse of

discretion to depart on the grounds of either the rehabilitative steps or his family

circumstances “or to grant a voluntary departure on a combination of the two,” App. at

36. The District Court therefore exercised its discretionary and unreviewable authority in

declining to depart.


                                               6
                                            III.

      For the foregoing reasons, the judgment of the District Court entered on December

10, 2002 will be affirmed.




TO THE CLERK:

      Please file the foregoing opinion.




                                           /s/ Robert E. Cowen
                                           United States Circuit Judge




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