                                                                   [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________

                               No. 97-3486
                        ________________________

                    D. C. Docket No. 97-CR-127-ORL-22

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellant,

                                   versus

KEI TOMONO,

                                                           Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                               (June 15, 1998)

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

PER CURIAM:
       Kei Tomono pleaded guilty to violations of the Lacey Act, 16 U.S.C.

§§ 3372(a)(1) & 3373(d)(1)(B), and the federal anti-smuggling statute, 18 U.S.C.

§ 545, in connection with his illegal importation of reptiles. At sentencing, the district

court granted a three-level downward departure for what it termed “cultural

differences.” The Government appeals the district court’s ruling. We vacate the

sentence and remand for resentencing.

                                  I. BACKGROUND

       Defendant Kei Tomono is a Japanese national who operates a commercial

reptile import/export business called Amazon International. In April 1996 Tomono

entered the United States at San Francisco on a flight from Japan. He carried in his

luggage approximately 60 “Pignose” or “Fly River” turtles (Carettochelys insculpta)

and 113 “Irian Jaya Snake-Neck” turtles (Chelodina siebenrocki). Upon entry to the

United States, Tomono completed a standard Customs Declaration Form 6059B,

which he was able to read and understand. A statement on the form read, “I am (We

are) bringing fruits, plants, meats, food, soil, birds, snails, other live animals, wildlife

products, farm products; or have been on a farm or ranch outside the U.S.” Tomono

checked the box marked “No” in response to this statement. Tomono subsequently

flew to Florida, where he sold the turtles to Tom Crutchfield of Tom Crutchfield’s

Reptile Enterprises, with whom he had a prior arrangement to sell the turtles.


                                             1
      In August 1997 Tomono again flew into San Francisco from Japan. On this

trip, he had six “Red Mountain Racer” snakes and two Mandarin Rat snakes in his

luggage. On his Customs form he again indicated that was not bringing any live

animals into the United States. Tomono intended to sell these snakes to a reptile

collector in Florida, and boarded a plane for Orlando. Unbeknownst to Tomono,

government agents had conducted a border search of his luggage in San Francisco and

found the snakes. After Tomono flew into Orlando and claimed his luggage, a Fish

and Wildlife Service agent approached him. Tomono consented to a search of his

luggage. The agent found the snakes and arrested Tomono and his traveling

companion, Masakazu Iseya. The agent read Tomono his rights, both in English and

through a Japanese translator.

      A grand jury returned a five-count indictment against Tomono and Iseya,

charging them with violations of the federal anti-smuggling statute, 18 U.S.C. § 545,

and the Lacey Act, 16 U.S.C. §§ 3372 & 3373. The anti-smuggling statute makes it

a crime to fraudulently or knowingly import goods contrary to law. See 18 U.S.C.

§ 545 (1994). The Lacey Act is specifically directed at fish and wildlife. It forbids

the import, export, sale, or possession of fish or wildlife that has been “taken,

possessed, transported, or sold” in violation of federal, state or foreign law. See 16

U.S.C. § 3372 (1994). Counts One and Three charged Tomono with bringing the


                                          2
turtles and snakes, respectively, into the country without declaring them to Customs,

in violation of § 545. Counts Two and Five charged Tomono with Lacey Act

violations in connection with his sale of the turtles to Crutchfield and his attempted

sale of the snakes. Pursuant to a plea agreement containing stipulated facts that

Tomono adopted during the plea colloquy, Tomono pleaded guilty to Counts Two and

Three.1

       At the sentencing hearing, the district court found that the base offense level for

a crime involving wildlife is six. See U.S. SENTENCING GUIDELINES MANUAL

§ 2Q2.1(a) (1997). The district court added two offense levels because the offense

involved a commercial purpose, see id. § 2Q2.1(b)(1), and five more offense levels

because it found that the market value of the wildlife was more than $40,000, see id.

§ 2Q2.1(b)(3)(A). The district court then subtracted two offense levels for acceptance

of responsibility, resulting in a total offense level of eleven.

       Tomono moved for a downward departure under § 5K2.0, alleging that because

of the cultural differences between the United States and Japan, he was unaware of the

serious consequences of his actions, and that these cultural differences constituted a

factor not considered by the Sentencing Commission that should be taken into account


       1
        Count Four charged Iseya with independently smuggling in two turtles in violation of 18
U.S.C. § 545. He pleaded guilty and was sentenced to 48 months of unsupervised probation, a fine
of $5000, and a special assessment of $100. He is not a party to this appeal.

                                               3
in calculating his sentence. The district court agreed with Tomono, and granted him

a three-level downward departure under § 5K2.0, bringing the offense level down to

eight. Tomono was sentenced to five years of probation (unsupervised provided that

he would leave the United States), a fine of $5000, and a special assessment of $200.

The Government filed a Motion to Correct Sentence, contending that the judge had

erred in granting a downward departure based on “cultural differences.” The district

court denied the motion. The Government appeals the downward departure.

                                  II. DISCUSSION

      A sentencing court has the authority to impose a sentence outside the guidelines

range if it finds “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) (1994); see also U.S. SENTENCING GUIDELINES

MANUAL § 5K2.0 (1997) (policy statement explaining appropriate circumstances

justifying departure under 18 U.S.C. § 3553). In Koon v. United States, the Supreme

Court clarified this aspect of the statute, holding that the unusual circumstances

justifying the departure must take the case outside the “heartland” of cases

contemplated by the applicable guidelines. See Koon v. United States, 518 U.S. 81,




                                           4
94-96, 116 S. Ct. 2035, 2045 (1996). We review a district court’s decision to depart

downward for abuse of discretion. Koon, 518 U.S. at 99-100, 116 S. Ct. at 2047.

      To aid in this review, we have held that a district court granting a downward

departure must articulate the specific mitigating circumstances upon which it relies

and the reasons why these circumstances take a case out of the guidelines’ heartland.

See United States v. Onofre-Segarra, 126 F.3d 1308, 1310 (11th Cir. 1996). The

district judge’s reasons for granting a downward departure in this case are difficult to

ascertain from the record. At Tomono’s sentencing hearing, she stated:

      Basically, the court agrees with the defense that the cultural differences
      in this case give the court a basis to depart downward that is not
      otherwise available or covered by the Sentencing Guidelines. The
      factual statements contained in the defense’s motion about the
      differences between the Japanese culture and the American culture show
      that the significance of this offense, while he was aware of some of the
      laws and regulations, the court has accepted his testimony that all of
      these turtles were four inches. What he has pled guilty to is the
      smuggling and the Lacey Act violations which he’s agreed to, to plead
      to.

             The court finds that Mr. Tomono’s not declaring [the animals] to
      the United States Customs could be well the result of the cultural
      differences and his misunderstanding of the laws and the forms. The
      court is departing three levels downward because the cultural difference
      would be demonstrated by the difference in the market value in Japan
      versus the difference in the market value in the United States.

(R.4 at 6-7). She elaborated on her reasoning in her order denying the Government’s

Motion to Correct Sentence, concluding:


                                           5
              Even though ignorance of the laws of a country is generally not
       sufficient to justify a downward departure, the cultural differences
       between this Defendant’s culture and the laws of the U.S. are significant.
       For example, in Japan, snakeneck turtles and flyriver turtles are not
       endangered species and are common. Regulations are not as stringent
       and, as a result, Defendant would not have been arrested in Japan for
       keeping the animals. In addition, “[r]eptiles are a unique part of
       Japanese culture,” and Defendant is respected for his work in the field.

               Accordingly, the Court finds that due to the cultural differences
       and unusual circumstances of this particular case, a downward departure
       is justified.

(R.2-71 at 3 (citations omitted)). From these two statements it appears that the district

court’s articulated reasons for departing from the guidelines, subsumed under the term

“cultural differences,”2 were: (a) the possibility that Tomono underestimated the

consequences of bringing in the undeclared wildlife, both out of some ignorance of

United States customs law and the relatively less stringent laws of his own country;

(b) the fact that the turtles in question are not endangered species and are relatively

common in Japan; (c) the “unique” place that reptiles occupy in Japanese culture; and

(d) the fact that Tomono is respected in his community for his work with reptiles.




       2
         We note, as the Third Circuit has, that the Sentencing Commission has expressly stated that
national origin is not relevant as a factor in the determination of a sentence, see U.S. SENTENCING
GUIDELINES MANUAL § 5H1.10 (1997), and that considering any “cultural differences” attributable
solely to a defendant’s country of origin comes uncomfortably close to considering the defendant’s
national origin itself, in contravention of the guidelines. See United States v. Yu, 954 F.2d 951, 954
& n.2 (3d Cir. 1992).

                                                  6
       Given the record before us, we cannot say that the circumstances identified by

the district court are significant enough to take this case out of the heartland of the

guidelines. The fact that the turtles may or may not be endangered is already

considered in the applicable guideline, which mandates a four-level enhancement if

the wildlife in question is listed in the Endangered Species Act or the Convention on

International Trade In Endangered Species. See U.S. SENTENCING GUIDELINES

MANUAL § 2Q2.1(b)(3)(B) (1997). The community respect Tomono enjoys due to his

work with reptiles could be considered to be evidence of either his community ties,

his vocational skills, or his prior good works, all of which the Sentencing Commission

has declared are “not ordinarily relevant in determining whether a sentence should be

outside the applicable guideline range.” Id. §§ 5H1.2, 5H1.5, 5H1.11 (1997). As for

the “unique” place that reptiles occupy in Japanese culture, there is no evidence in the

record that would support such a finding other than the allegations in Tomono’s

motion for downward departure; as we have held previously, the arguments of counsel

are generally an insufficient basis upon which to depart from the guidelines. See

Onofre-Segarra, 126 F.3d at 1310-11.3




       3
        The district court may have inappropriately relied in part on these statements in granting the
departure. See R.4 at 6 (referring to “[t]he factual statements contained in the defense’s motion
about the differences between the Japanese culture and the American culture”).

                                                  7
      This leaves us with Tomono’s claimed ignorance, presumably arising from

“cultural differences,” of the consequences of his actions under United States law.

Tomono’s business was the importation and exportation of wildlife. Although he may

not have been an expert in United States customs law, Tomono testified that he knew

that United States regulations forbid the importation of turtles with a carapace length

of less than four inches, and that he was aware of “other rules” regarding the

importation of animals. See Transcript of Sentencing Hearing, Record Excerpts Tab

60 at 95, 105. He stipulated in his plea agreement that he understood the customs

forms on which he made a false statement. (R.1-49 at 17). Section 2Q2.1 of the

guidelines, under which Tomono was sentenced, specifically applies to crimes

involving the illegal importation and exportation of wildlife. See U.S. SENTENCING

GUIDELINES MANUAL § 2Q2.1 cmt. (1997). By definition, imported wildlife comes

from other countries; presumably, a significant portion of illegally imported wildlife

will be imported by people from other countries, many of whom will have an

imperfect understanding of United States customs law. The record before us does not

support the conclusion that the circumstances surrounding Tomono’s crime were very

different from the heartland of cases considered by the Sentencing Commission in

drafting § 2Q2.1. We hold that the district court abused its discretion in concluding




                                          8
that the circumstances of this case were sufficiently unusual to justify granting

Tomono a downward departure under § 5K2.0.4

                                   III. CONCLUSION

       For the reasons stated above, we VACATE Tomono’s sentence and REMAND

for resentencing consistent with this opinion.

       VACATED AND REMANDED.




       4
        We need not decide whether “cultural differences” may ever be an appropriate ground upon
which to depart from the guidelines.

                                               9
RONEY, Senior Circuit Judge, dissenting:



      I respectfully dissent. This is apparently the first case in which a court of

appeals has ever reversed a district court’s departure downward for reasons such as

those set forth here, reasons that have been dubbed “cultural differences.” Every case

cited in the briefs and in the court’s opinion have simply refused to reverse a district

court’s denial of a downward departure based on cultural differences.

      I agree with Chief Judge Becker’s dissent in United States v. Yu, 954 F.2d 951,

957-59 (3rd Cir 1992), where he concluded that the Sentencing Commission has not

rejected consideration of a defendant’s culture in making sentencing decisions.

      Thus, in my judgment, the district court had discretion to depart downward

under the guidelines. The issue is whether the district court abused that discretion.

I believe that the integrity and purpose of the sentencing guidelines require appellate

courts to be slow to encroach on the discretion given to the sentencing courts. District

court judges sit in a preferred position to understand the justice of each situation,

while we must learn what we can from reading a cold record. Because district courts


                                           1
have an “institutional advantage” in determining when a case falls outside the

heartland of guidelines cases, we should not substitute our own judgment unless a

district court has abused its discretion. Koon v. United States, 518 U.S. 81, 98-99

(1996).

      The very idea of discretion means that a sentencing court could go either way

and not be wrong on appeal. In this case, I would not encroach upon that discretion,

but would affirm, leaving the exercise of that discretion to the district court. The

Supreme Court has explained that “[i]t has been uniform and constant in the federal

judicial tradition for the sentencing judge to consider every convicted person as an

individual and every case as a unique study in the human failings that sometimes

mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon, 518

U.S. at 113. In this case, the defendant was a Japanese citizen who had only traveled

to the United States twice before. The district court found that his offense “could be

well the result of the cultural differences and his misunderstanding for the laws and

the forms,” and granted a three-level downward departure. I believe that the district

court did not abuse its discretion.




                                          2
