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


10-28-2003

USA v. Matadamus-Briceno
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3934




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 02-3934


                            UNITED STATES OF AMERICA

                                             v.

                         PATRICIA MATADUMAS-BRICENO,

                                                  Appellant


                     On Appeal from the United States District Court
                              for the District of New Jersey
                              (Dist. Court No. 02-cr-00476)
                        District Judge: Hon. Stephen M. Orlofsky


                       Submitted Under Third Circuit LAR 34.1(a)
                                   October 15, 2003

              Before: SLOVITER, ROTH, and CHERTOFF, Circuit Judges

                                (Filed: October 29, 2003 )


                                         OPINION


CHERTOFF, Circuit Judge

       Appellant Patricia Matadamus-Briceno, a legal permanent resident who was

convicted of two felonies, challenges her sentence on the ground that the District Court

failed to adequately consider the impact of her likely deportation as a factor supporting a
downward departure for her sentence. Jurisdiction in the District Court rested on 18

U.S.C. § 3231. Jurisdiction in this Court is proper because the judgment is a final order

under 28 U.S.C. § 1291, and Matadamus-Briceno has a statutory right to appeal her

sentence under 18 U.S.C. § 3742(a). For the reasons stated below, we will affirm the

District Court’s sentence.

                                             I.

       Matadamus-Briceno is a citizen of Mexico who was granted legal permanent

United States resident status on December 1, 1990. On April 4, 2001, Matadamus-

Briceno was arrested by Penns Grove, New Jersey, police for possessing, producing and

selling fraudulent Resident Alien Registration and Social Security cards. On June 7,

2002, Matadamus-Briceno appeared in District Court, and pled guilty to a two-count

Information filed the same day. Count One charged Matadamus-Briceno with unlawfully

possessing Resident Alien Cards in violation of 18 U.S.C. §§ 1546(a) and 2. Count Two

charged Matadamus-Briceno with producing false Social Security Cards in violation of

§§ 1546(a) and 2.

       A motion for downward departure for extraordinary family circumstances was

filed under the Sentencing Guidelines. U.S.S.G. §§ 5H1.6, 5K2.0. Matadamus-Briceno

argued she is irreplaceable as the sole-caretaker and sole support system for her three

young children, one of whom is often ill and suffers from respiratory ailments.

Matadamus-Briceno contended that the separation and possible permanent loss of custody

that would result from prolonged incarceration and/or deportation constituted an
extraordinary family circumstance. The District Court rejected that argument, reasoning

that while it had discretion to depart for extraordinary family circumstances, the

circumstances in this case were not extraordinary enough to warrant a downward

departure. On October 10, 2002, the District Court denied the motion for downward

departure, and sentenced Matadamus-Briceno to concurrent 24 month terms of

imprisonment on both counts, three years supervised release, and a special assessment of

$200.

        This Court exercises plenary review in evaluating whether the District Court

adopted the proper legal standard for interpreting and applying the Sentencing Guidelines.

United States v. Castano-Vasquez, 266 F.3d 228, 231 (3d Cir. 2001); United States v.

Johnson, 155 F.3d 682, 683 (3d Cir. 1998); United States v. McQuilkin, 97 F.3d 723, 727

(3d Cir. 1996). A defendant may only appeal from the denial of a downward departure if

he or she alleges the district court committed a legal error; a defendant may not challenge

the merits of a district court’s discretionary refusal to depart. United States v. Georgiadis,

933 F.2d 1219, 1222 (3d Cir. 1991); see also United States v. Stevens, 223 F.3d 239, 247

(3d Cir. 2000).

                                             II.

        “[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. As Matadamus-Briceno acknowledges, “a downward departure based

on family ties and responsibilities should be the exception rather than the rule.” United
States v. Sweeting, 213 F.3d 95, 100 (3d Cir. 2000). That is, the family circumstances

must be extraordinary, id., but there is “no requirement that the circumstances be extra-

ordinary by any particular degree of magnitude,” United States v. Dominguez, 296 F.3d

192, 195 (3d Cir. 2002) (emphasis in original). In evaluating whether a downward

departure is warranted, a sentencing court should consider what features potentially make

the case special or unusual, and whether the guidelines forbid, encourage, or discourage

departure based on those features. Koon v. United States, 518 U.S. 81, 95-96 (1996).

       Matadamus-Briceno argues the District Court failed to follow Koon in refusing to

consider whether the family circumstances were sufficiently extraordinary to warrant a

downward departure. In particular, Matadamus-Briceno argues the District Court erred in

refusing to consider her likely deportation as a factor supporting downward departure.

The record, however, is to the contrary. The District Court specifically acknowledged its

authority to downwardly depart under U.S.S.G. §§ 5K2.0 and 5H1.6, but concluded that

the circumstances were not so extraordinary to warrant a downward departure.

Matadamus-Briceno argues that in reaching this conclusion, the District Court “never

mentioned the deportation factor.” While it is true that the District Court’s initial

discussion of “extraordinary family circumstances” was in the context of the impact of

incarceration, the District Court went on to address Matadamus-Briceno’s concern that

she would face deportation as a result of her conviction and incarceration, resulting in the

permanent loss of custody of her children. Thus, the District Court properly considered

and rejected Matadamus-Briceno’s motion for a downward departure based on
extraordinary family circumstances.

       Matadamus-Briceno also argues she was prejudiced by the District Court’s failure

to consider that a reduction of her prison sentence to less than 12 months would make her

eligible to avoid what would otherwise be a mandatory deportation. Under 8 U.S.C. §

1101(a)(43)(P) a sentence of 12 months or more would result in these convictions being

characterized as an “aggravated felony” for deportation purposes. The Attorney General

does not have discretion to waive deportation in aggravated felony cases, but does have

discretion in non-aggravated felony cases. Matadamus-Briceno alleges the District Court

erroneously believed the Attorney General retained such discretion in all cases, whether

or not the sentence is 12 months or more.

       This argument is also unavailing, however. As a preliminary matter, we review

this claim only for plain error because M atadamus-Briceno did not present this specific

argument at the sentencing hearing. Matadamus-Briceno contends: “Defense counsel

attempted to explain that deportation was not guaranteed, but the court refused to explore

the possibility.” Appellant Br. at 18. While the record does indicate that counsel was

trying to explain that Matadamus-Briceno would not necessarily be deported irrespective

of what sentence was imposed, there is no clear articulation of the significance of the 12

month distinction. Where a defendant has failed to object to a purported error of the

sentencing court, this Court will review only for plain error. United States v. Couch, 291

F.3d 251, 252 (3d Cir. 2002). To establish plain error, the defendant must show: “(1) an

error was committed; (2) the error was plain, that is, clear and obvious; and (3) the error
affected the defendant’s substantial rights.” United States v. Syme, 276 F.3d 131, 143 n.4

(3d Cir. 2002) (internal quotations omitted). To establish the third prong, defendant must

show that “were it not for the plain error committed...the outcome of the proceeding

would have been different.” United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002)

(emphasis in original).

       Under this standard, Matadamus-Briceno’s argument fails. There is no indication

that the District Court would have chosen to downwardly depart if it knew the Attorney

General only had discretion to avoid deportation if a sentence of less than 12 months was

imposed. Rather, the record clearly indicates the District Court considered the impact of

Matadamus-Briceno’s likely deportation on her children, even if it did not specifically

take into account the effect of a sentence of less than 12 months on her deportation status.

The District Court simply concluded the facts did not warrant downward departure based

on “extraordinary family circumstances.”

       Finally, while Matadamus-Briceno characterizes her claim as one for downward

departure based on extraordinary family circumstances, in essence Matadamus-Briceno

now seems to claim she missed the chance to obtain a downward departure that might

have changed her immigration status. But nothing in the sentencing guidelines even

permits the District Court to depart downward in order to influence the likelihood that the

government will deport a defendant. The purpose of the Sentencing Guidelines is to

determine the appropriate sentence within the criminal justice system, 18 U.S.C. §

3553(a), not to alter the likelihood of deportation, which is governed by different statutes.
Thus, it is doubtful that the District Court could properly depart downward in order to

avoid mandatory deportation.1

                                             III.

       For the foregoing reasons, we affirm the District Court’s judgment of sentence.




TO THE CLERK:


       Please file the foregoing opinion.


                                            /s/ Michael Chertoff
                                            United States Circuit Judge




       1
          Although there are cases that discuss to what extent unusual hardship flowing
from possible deportation can be considered, see United States v. Marin-Castaneda, 134
F.3d 551, 554 (3d Cir. 1998) (discussing cases), a consideration of such hardships is
different from Matadamus-Briceno’s apparent attempt to seek a downward departure for
the purpose of altering her immigration status. It is one thing for a court to consider the
effect of deportation on sentencing. It is quite another for a court to consider sentencing
as a way to affect deportation.
