                                                                      F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                   PUBLISH
                                                                       JUN 17 1999
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                            Clerk
                              TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellant,
 v.
                                                      No. 97-2224
 DOLORES CONTRERAS,

       Defendant-Appellee.


                 Appeal from the United States District Court
                       for the District of New Mexico
                          (D.C. No. CR-92-486 LB)


Thomas L. English, Assistant United States Attorney (John J. Kelly, United States
Attorney, and Charles L. Barth, Assistant United States Attorney, Albuquerque,
New Mexico, on the briefs), Albuquerque, New Mexico for Plaintiff-Appellant.

Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal
Public Defender with her on the briefs), Denver, Colorado for Defendant-
Appellee.


Before ANDERSON, McKAY and EBEL, Circuit Judges.


EBEL, Circuit Judge.


      From 1986 until 1992, Dolores Contreras participated in a drug conspiracy,

run by her father, which sold more than 20,000 pounds of marijuana and more than
20,000 pounds of cocaine throughout the United States. After a mistrial Ms.

Contreras was re-indicted, and late in 1994 she was convicted on four counts —

conspiracy, investment of illicit drug profits, and two counts of money laundering.

At sentencing, the district court granted Ms. Contreras’ motion for a downward

departure and sentenced her to 120 months imprisonment. On appeal, this court

reversed the district court’s decision to depart downward and remanded the case

for resentencing. At resentencing, the district court again departed downward,

reaching the same sentence of 120 months imprisonment. The government

challenges the departure pursuant to 18 U.S.C. § 3742(b). We exercise jurisdiction

pursuant to 28 U.S.C. § 1291, and again we reverse.



                                  I. Background

      The history of this case up through the first appeal is well documented in

United States v. Contreras, 108 F.3d 1255, 1258-61 (10th Cir. 1997). Therefore,

we only briefly recount some early background for context and focus on events

since our remand.

      Dolores Contreras is one of twenty-two people charged by the government

with participating in an extensive drug conspiracy run by her father, Gabriel

Rodriguez-Aguirre. Mr. Rodriguez-Aguirre’s family-run organization accounted




                                        -2-
for the sale of over 20,000 pounds of marijuana and 20,000 pounds of cocaine

throughout the United States between 1984 and 1992.

      From December 1986 until October 1992, Ms. Contreras’ role in her father’s

illicit business consisted primarily of storing large amounts of drugs at her

Phoenix, Arizona home and using profits from drug sales. Ms. Contreras started

assisting her father in this illegal enterprise when she was 17, but tellingly, she

remained active in the criminal enterprise until she was 24, and even then, her

participation stopped only because she and her father were arrested. On

October 20, 1992, the United States charged Ms. Contreras with conspiracy to

distribute more than 100 grams of marijuana, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(A), and three counts of money laundering in violation of 18 U.S.C.

§ 1956(a)(1)(B)(I). Ms. Contreras pled not guilty, and after one mistrial, the

United States obtained a superseding indictment which charged Ms. Contreras with

conspiracy to possess with the intent to distribute cocaine, conspiracy to distribute

cocaine, receiving income from the distribution of controlled substances, and

investing the ill-gotten gains, in violation of 21 U.S.C. § 854. On December 15,

1994, after a one-month trial, the jury convicted Ms. Contreras on four counts —

conspiracy, investment of illicit drug profits, and two counts of money laundering.

      At sentencing, the district court adopted the factual findings and guideline

application in Ms. Contreras’ presentence report, which assessed her base offense


                                          -3-
level at 38, her criminal history category at I, and her guideline range at 235 to

293 months imprisonment. Nevertheless, the court granted Ms. Contreras’ motion

for a downward departure and sentenced her to 120 months in prison “to avoid

[an] unwarranted disparity of sentences” between Ms. Contreras and co-

conspirator Paula Denogean.

      The government appealed Ms. Contreras’ original sentence, and this court

held that a disparity in sentences between Ms. Contreras and Ms. Denogean was an

inappropriate ground for departure because the two were not similarly situated —

“Ms. Contreras was convicted by a jury of four separate offenses, while Ms.

Denogean pled guilty to one offense.” Contreras, 108 F.3d at 1272. Accordingly,

we held that the district court had abused its discretion and reversed Ms.

Contreras’ sentence and remanded the case to the district court.

      At resentencing, the district court again departed downward from the

applicable guideline range of 235 to 293 months imprisonment. Again the district

court sentenced Ms. Contreras to 120 months in prison (the statutorily required

minimum) — on the basis of parental influence, and, once again, on the disparity

of sentences. Again the government appeals the sentence, claiming the district

court relied on impermissible grounds for departure. And again we reverse the

district court and remand for resentencing.




                                         -4-
                                   II. Discussion

A. Standard of Review

      After the Supreme Court’s decision in Koon v. United States, 518 U.S. 81

(1996), departures from the Sentencing Guidelines must be reviewed under a

unitary abuse-of-discretion standard. See United States v. Collins, 122 F.3d 1297,

1302 (10th Cir. 1997).    In Collins, this court articulated the four-part inquiry a

reviewing court must undertake in determining whether a district court abused its

discretion in departing from the Guidelines. First, the court must determine

“whether the factual circumstances supporting a departure are permissible

departure factors.” Id. at 1303. Second, the court must assess “whether the

departure factors relied upon by the district court remove the defendant from the

applicable Guideline heartland thus warranting a departure.” Id. Third, the court

must decide whether the record provides a sufficient factual basis for the

departure. See id. Finally, the court must examine the degree of departure to

assure it is reasonable. See id.

      Collins explained that the first inquiry — whether the factual circumstances

supporting departure are permissible departure factors — is a legal one, as to

which we owe no deference to the district court, while the next three inquiries are

more factual in nature, and accordingly are due more deference on review. See id.

at 1302-03. In particular, “substantial deference” is given to the district court in


                                         -5-
our review of the second factor — whether a particular defendant is within the

heartland given all the facts of the case.   See id. ; United States v. Whiteskunk , 162

F.3d 1244, 1249 (10th Cir. 1998);      United States v. Jones , 158 F.3d 492, 497 (10th

Cir. 1998). In Koon, the Supreme Court stated:

       [W]hether a discouraged factor nonetheless justifies departure
       because it is present in some unusual or exceptional way, are matters
       determined in large part by comparison with the facts of other
       Guidelines cases. District courts have an institutional advantage over
       appellate courts in making these sorts of determinations, especially as
       they see so many more Guidelines cases than appellate courts do.

518 U.S. at 98. While the Court acknowledged that “whether a factor is a

permissible basis for departure under any circumstances is a question of law, and

the court of appeals need not defer to the district court’s resolution of the point,”

the Court clearly stated that considerations of “whether [a factor] in the particular

instance suffices to make the case atypical” is a “factual matter[].” Id. at 100.

       However, this is not to say that a district court’s decision to depart because

the defendant’s situation is outside the heartland is unreviewable. To the contrary,

such decisions are reviewable under an abuse of discretion standard. And, an

important consideration in evaluating whether the district court abused its

discretion to depart will be whether the factor or factors relied upon are

prohibited, discouraged, encouraged, or not discussed in the Guidelines. See id. at

98 (“The deference that is due depends on the nature of the question presented.”).



                                             -6-
      For example, if the district court relied on an impermissible factor — an

inquiry that we make de novo, see id. at 100 — the decision to depart would, as a

matter of law, constitute an abuse of discretion. See United States v. Dominguez-

Carmona, 166 F.3d 1052, 1056-57 (10th Cir. 1999); Whiteskunk, 162 F.3d at

1249-50 (if a departure decision is based on an impermissible factor it is error).

Similarly, if the district court relied upon a permissible, but discouraged, factor

our review of a decision to depart must take cognizance of the discouraged status

of the factor relied upon in evaluating whether the district court abused its

discretion. In short, the district court’s exercise of discretion to depart in such

circumstances must be measured against the backdrop that “[t]he Supreme Court

has made it clear that when a factor is discouraged . . . ‘the court should depart

only if the factor is present to an exceptional degree . . . .’” United States v.

Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997) (quoting Koon, 518 U.S. at 96);

see also Dominguez-Carmona, 166 F.3d at 1057. In such circumstances “courts

should depart downward only in rare cases.” Archuleta, 128 F.3d at 1452

(reversing a district court’s decision to depart downward based upon the

discouraged factor of a defendant’s family responsibilities); see also Jones, 158

F.3d at 499 (disapproving use of the discouraged factor of family responsibilities,

but affirming downward departure on the basis of other supporting factors); United

States v. Rodriguez-Velarde, 127 F.3d 966, 968-69 (10th Cir. 1997).


                                           -7-
B. Analysis

      At Contreras’ resentencing, the district court identified two reasons for its

downward departure. First, the court focused on the influence exerted on Ms.

Contreras by her father, Gabriel Aguirre. Second, the court alluded to the

disparity between the sentence range the Guidelines dictates for Ms. Contreras and

the actual sentences that two of her co-conspirators received. Because neither

factor individually, nor the two in combination, justify a departure from the

Guideline range, we reverse.



1. Sentencing Disparity — We examine the second reason for departure first. At

resentencing, the district court stated:

              My reasons for departure are because that others that
              were involved in this conspiracy either became ill or
              became a fugitive and then plead [sic] guilty later on all
              received considerably less sentences, less time than the
              235 months which is the minimum allowed by the
              guidelines. Because of this disparity, although that’s not
              the only reason, I am going to depart downward.

The record of the hearing indicates that the “others that were involved in this

conspiracy” were co-defendants Paula Denogean and Maria Villalba. Due to

unique circumstances, neither of them stood trial in the large, multiple-defendant

prosecution in which Ms. Contreras was convicted. Ms. Denogean took ill before

trial and was severed from the case. Ms. Villalba fled and was a fugitive at the


                                           -8-
time of trial. When each became available for prosecution, instead of retrying its

complicated case, the government reached an agreement with each co-conspirator

that resulted in a sentence of significantly less time than the range the Guidelines

dictate for Ms. Contreras.

      While we recognize that Ms. Contreras’ situation is unfortunate as compared

to her co-conspirators, it was an abuse of discretion to predicate a downward

departure on this basis. First, with regard to the comparison to Ms. Denogean, this

court has already condemned a departure for Ms. Contreras based on a disparity of

sentences. As we said the last time we reviewed this case: “The record reveals

that Ms. Contreras went to trial and was convicted on four counts . . . . Ms.

Denogean, on the other hand, accepted responsibility for her criminal conduct and

pled guilty to a lesser charge . . . . Given their distinct situations, we conclude the

trial court abused its discretion in concluding an ‘unwarranted disparity’ existed

justifying downward departure.” Contreras, 108 F.3d at 1271-72. Thus, it is the

rule of this case from the previous appeal that the sentencing disparity factor with

respect to Ms. Denogean will not support a downward departure. See Rohrbaugh

v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995).

      Moreover, the same principles that support our conclusion with regard to

Ms. Denogean, convince us that the district court abused its discretion in departing

downward in Ms. Contreras’ case based on a disparity between her sentence and


                                          -9-
that of Ms. Villalba. In United States v. Gallegos, 129 F.3d 1140 (10th Cir. 1997),

while we recognized that “the district court should consider . . . ‘the need to avoid

unwarranted sentence disparities among defendants with similar records who have

been found guilty of similar conduct,” id. at 1143 (quoting 18 U.S.C. §

3553(a)(6)), we explained that “the purpose of the guidelines is to eliminate

disparities in sentencing nationwide, not to eliminate disparity between co-

defendants.” Id. (quotation, alteration and citation omitted). “This circuit has

stated that ‘neither Congress nor the [Sentencing] Commission could have

expected that the mere fact of a difference between the applicable guideline range

for a defendant [and] that of his co-defendant would permit a departure, either

because the difference was too large or too small.’” Id. (quoting United States v.

Joyner, 924 F.2d 454, 460-61 (2d Cir. 1991)).

      Observing that the Sentencing Reform Act, 18 U.S.C. § 3553(a)(6), seeks to

eliminate not all sentencing disparities, but only “unwarranted” disparities, our

cases establish that sentencing disparity between co-defendants is an

impermissible departure factor when the defendants being compared either (1) pled

to or were convicted of different offenses or (2) played significantly different roles

in the commission of the same offense. See also United States v. McMutuary,

Nos. 98-1150, 98-1151, 1999 WL 274542, at *6 (7th Cir. May 5, 1999) (“justified

disparities [can] never serve as a basis for a departure from the Guidelines


                                         - 10 -
sentencing range”). While the issue of whether a departure factor is permissible or

not is a legal question, we recognize that the necessary conclusions to resolve that

question with regard to the sentencing disparity factor involve factual inquiries

which we review for an abuse of discretion.

      As noted above, the district court departed on the basis of the disparity in

sentences without reference to either the co-conspirators’ offense of conviction or

role in the offense. Here, Ms. Villalba, like Ms. Denogean, was not situated

similarly to Ms. Contreras. Thus, any disparity in their sentences was not

“unwarranted,” and the district court abused its discretion in departing downward

on this basis. Most simply, after her capture, Ms. Villalba pled guilty to a lesser

charge and was in a different situation from Ms. Contreras on sentencing. (Ms.

Villalba’s Plea Agreement indicates that she pled guilty to “Maintaining a Place

for Distribution of Marijuana and Aiding and Abetting, in violation of 21 U.S.C. §

856(a)(1), 21 U.S.C. § 856(b), and 18 U.S.C. § 2.) Accordingly, the two were not

similarly situated and we are in no position to second-guess the prosecutorial

decisions of the United States Attorney’s Office. See Contreras, 108 F.3d at 1272.

In sum, the district court impermissibly relied on a sentencing disparity in

granting Ms. Contreras’ motion for a downward departure.




                                         - 11 -
2. Parental Influence — At resentencing, the district court recognized the high

standard that must be met to justify a departure under 18 U.S.C. § 3553(b) and

U.S.S.G. § 5K2.0. 1 Nevertheless the court concluded that “in this case a

downward departure is warranted in connection with the influence that was

[w]ielded by [Ms. Contreras’ father,] Mr. Gabriel Aguirre.”

      Our first task is to classify the factor of parental influence in order to assess

whether it provides a permissible basis for departure. The district court proceeded

as if influence was different from other forms of coercion when exerted by a

parent. 2 We disagree. While a parent’s unique position vis-a-vis his or her child

      1
          Incorporating 18 U.S.C. § 3553(b), U.S.S.G. § 5K2.0 states:

      Under 18 U.S.C. § 3553(b) the sentencing court may impose a
      sentence outside the range established by the applicable guideline, if
      the court 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.”
      2
        The district court found support for its “parental influence is different”
argument in two pre-Koon cases from other circuits. In United States v. Ledesma,
979 F.2d 816 (11th Cir. 1992) and United States v. Locklear, Nos. 93-5490, 93-
5535, 1994 WL 642196 (4th Cir. Nov. 15, 1994) (unpublished disposition), the
Eleventh and the Fourth Circuits, respectively, held that upward departures could
be justified for parents who involved their children in criminal activity. See
Ledesma, 979 F.2d at 822, Locklear, 1994 WL 642196, at **3-4. This circuit
recently affirmed the same position in an unpublished disposition. See United
States v. Forsythe, No. 97-6250, 1998 WL 539462, at *3 (10th Cir. Aug. 24,
1998). Nevertheless, we do not find the district court’s logic persuasive — just
because the Guidelines will tolerate an upward departure based on a parent
                                                                         (continued...)

                                         - 12 -
may result in an ability to wield significant influence over that child, we believe

such influence is most appropriately analyzed under the “Coercion and Duress”

factor recognized in § 5K2.12. 3

       Before the district court, Ms. Contreras argued that there were two

components to her father’s coercive influence over her — a financial dependance

and an emotional dependance. To the extent that the district court relied on any

coercion stemming from her financial dependance on her father — or economic


      2
        (...continued)
involving his or her child in criminal activity does not mean that the Guidelines
will permit a downward departure for a child who was brought into a life of crime
by his or her parent. The Guidelines require no such zero-sum analysis.
Accordingly, we analyze the parental influence exerted over Ms. Contreras under
the recognized heading of coercion.
      3
          Section 5K2.12 reads:

      Coercion and Duress (Policy Statement)

      If the defendant committed the offense because of serious coercion,
      blackmail or duress, under circumstances not amounting to a
      complete defense, the court may decrease the sentence below the
      applicable guideline range. The extent of the decrease ordinarily
      should depend on the reasonableness of the defendant’s actions and
      on the extent to which the conduct would have been less harmful
      under the circumstances as the defendant believed them to be.
      Ordinarily coercion will be sufficiently serious to warrant departure
      only when it involves a threat of physical injury, substantial damage
      to property or similar injury resulting from the unlawful action of a
      third party or from a natural emergency. The Commission considered
      the relevance of economic hardship and determined that personal
      financial difficulties and economic pressures upon a trade or business
      do not warrant a decrease in sentence.

                                        - 13 -
coercion — the court relied on an impermissible factor. As the § 5K2.12 policy

statement makes clear: “The Commission considered the relevance of economic

hardship and determined that personal financial difficulties . . . do not warrant a

decrease in sentence.” See also Gallegos, 129 F.3d at 1145 n.7 (explicitly

condemning use of this factor in assessing coercion, stating “[t]he district court

also mentioned the fact that Maden ‘provided for all of [Gallegos’] daily

needs. . . .’ As such, to the extent the district court may have relied on [personal

financial difficulties and economic pressures], the district court erred.” (citations

omitted)).

      Turning to potential emotional coercion, we note that while the Guidelines

recognize “serious coercion, blackmail or duress” as a potential ground for

departing below the applicable guideline range, they also caution that “[o]rdinarily

coercion will be sufficiently serious to warrant departure only when it involves a

threat of physical injury, substantial damage to property or similar injury resulting

from the unlawful action of a third party or from a natural emergency.” U.S.S.G. §

5K2.12 (policy statement). Based on the Commission’s affirmative statement of

when a departure would “ordinarily” be warranted, this court has concluded that

coercion in the absence of evidence of such enumerated serious threats is a

discouraged basis for departure. See Gallegos, 129 F.3d at 1145 (in order to

justify a departure based on coercion, the Guidelines ordinarily require evidence of


                                         - 14 -
(1) a fear of a third party, that (2) “caused the defendant to commit the criminal

act”).

         Here, Ms. Contreras acknowledges that “there was no evidence that Aguirre

threatened Contreras with physical harm.” Accordingly, we examine closely the

evidence the district court relied on in concluding that Contreras’ situation falls

outside the ordinary, run-of-the-mill cases that the heartland encompasses.      At

resentencing, the district court realized that “in all likelihood Dolores could have

exercised her option and said, ‘Dad, I’m not going to have any part of this dope

operation.’” The court observed further:

         She could have gone to live with her mother. The fact is she didn’t.
         Whether or not a 17- or 18-year-old girl who doesn’t have much
         education, who has one child when she’s 15, and a couple later by a
         different father is going to take this upon herself and leave this
         organization.
         ...
                I don’t really think that Dolores Contreras had all these options.
         She had little children that needed feeding. She wanted to be close to
         those children. Here is a lot of free money floating around from
         whatever the source might be that allowed her to feed those children
         and not have to go back to school and get a job at a minimum wage.

Thus, the district court apparently departed downward based on the influence

exerted on Ms. Contreras by her father in light of her youth and economic needs. 4



       On appeal, in a pro se supplemental brief, Ms. Contreras urges this court to
         4

consider her unusually high susceptibility to her father’s influence due to her
culture and religion. Ms. Contreras explains that “parental subservience is . . .
fundamental to traditional Hispanic/Mexican-American culture. Its basis goes
                                                                       (continued...)

                                           - 15 -
The court thereby modified an already discouraged basis for departure (coercion in

the absence of serious threats) by another discouraged consideration (age,

specifically youth) and one altogether prohibited by the Guidelines (economic

need), see supra.

      As to the age factor, while youth, in and of itself, “is not ordinarily relevant

in determining whether” to depart from the Guidelines, see U.S.S.G. § 5H1.1 (Age

policy statement), we acknowledge that age may be relevant in determining

whether one has been coerced. The very young are likely to be dependant on

elders, and thus may be more susceptible to threats or deception, especially by

parents. Because Ms. Contreras understands the difficulty in arguing that 24-year-

olds are so youthful that they are unusually prone to coercion, she directs our

attention to her age when she first entered the conspiracy. Ms. Contreras argues

that when she began working for her father’s drug operation she was only 17

years-old and very susceptible to influence. Without deciding at what age a person

garners enough strength to withstand the coercive pressures of a parent, we note

that everyone has the obligation to cease criminal activity once the coercion


      4
        (...continued)
beyond mere cultural norms and principles, however, with its genesis in the very
heart of the Catholic/Christian Religion, specifically in the 5th Commandment’s
dictate ‘[h]onor your father and your mother.’”
       While we do not doubt the sincerity of Ms. Contreras’ argument, the
Sentencing Guidelines prohibit us from considering race, national origin, creed,
and religion. See U.S.S.G. § 5H1.10.

                                        - 16 -
subsides. Moreover, no one can rely on the fact that he or she was coerced when

young to continue indefinitely in criminal activity without legal consequence.

      With regard to whether Ms. Contreras’ father exerted a sufficient level of

influence over her to place her case outside the heartland, we find most instructive

this court’s decision in Gallegos, 129 F.3d at 1140. In Gallegos, we held that the

influence exerted over the defendant (a young woman with a child who was living

with a much older man upon whom she was economically dependant) by her older,

live-in boyfriend to deal drugs was “not extraordinary and does not rise to a level

of coercion which the guidelines countenance,” despite the fact that the district

court had found that the defendant had been subjected to “‘significant influence,

domination, and manipulation’” by her boyfriend. Id. at 1145 (quoting the district

court).

      After careful review of the record, construing the findings below in the light

most favorable to Ms. Contreras, we see no evidence that her case involved an

exceptional degree of coercion. On these facts, we hold that the district court

abused its discretion in departing downward.



3. Combination of factors — Apparently recognizing the inappropriateness of

grounding a departure in any of the factors discussed above, Ms. Contreras argues

that “the Court may depart even if the factors considered individually would not


                                        - 17 -
warrant departure if, taken in their totality, a departure is warranted.” In support

of her combination argument, Ms. Contreras quotes from the Commentary on

§ 5K2.0:

      The Commission does not foreclose the possibility of an extraordinary
      case that, because of a combination of such characteristics or
      circumstances, differs significantly from the “heartland” cases
      covered by the guidelines in a way that is important to the statutory
      purposes of sentencing, even though none of the characteristics or
      circumstances individually distinguishes the case.

Ms. Contreras stopped short of quoting the last sentence of the paragraph, which

reads: “However, the Commission believes that such cases will be extremely

rare.” U.S.S.G. § 5K2.0 (commentary).

      This is not one of those extremely rare cases. As we have stated, neither

disparity of sentences nor coercion was an appropriate ground for departure. The

former was impermissible because the defendants compared were not similarly

situated. The latter was inappropriate in this case because any coercion exerted on

Ms. Contreras was not present to an exceptional degree taking her case outside the

heartland of the Guidelines. Combining the legally impermissible and factually

inappropriate grounds for departure cannot make this case one of the “extremely

rare” cases contemplated by § 5K2.0.

      Ms. Contreras attempts to rehabilitate the sentencing court’s departure by

adding to the two inappropriate factors Ms. Contreras’ family responsibilities.

While she acknowledges that family ties and responsibilities are disfavored bases

                                         - 18 -
for departure, Ms. Contreras argues that in combination with other grounds, family

responsibilities can be a proper consideration. In support of her position she cites

two pre-Koon cases, United States v. Peña, 930 F.2d 1486 (10th Cir. 1991) and

United States v. Tsosie, 14 F.3d 1438 (10th Cir. 1994). Neither of those cases are

availing to Ms. Contreras. Both cases support only the proposition that family

responsibilities can justify a departure (1) by informing a court’s consideration of

whether a defendant’s criminal activity were aberrational — an encouraged factor

for departure, see United States v. Talk, 158 F.3d 1064, 1072 (10th Cir. 1998),

cert. denied, 119 S. Ct. 1079 (1999) — or (2) in combination with a finding of

aberrational behavior, see Tsosie, 14 F.3d at 1441-42; Peña, 930 F.2d at 1495.

Ms. Contreras has no claim to a departure based on aberrant behavior. Her six-

year involvement in her father’s large drug conspiracy stands in stark contrast to

cases involving a “single act[] of aberrant behavior” that can justify a departure.

See Peña, F.2d at 1495 (quoting U.S.S.G. ch. I, pt. A § 4(d) p.s., at p. 1.9 (1988)).

      While we share the sentencing court’s sympathy for Ms. Contreras based on

the fact that the Guideline range will separate her from her three children for a

prolonged period, this fact, neither alone nor in combination with the other

impermissible grounds, can justify the downward departure. “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


                                         - 19 -
degree . . . .’” United States v. Rodriguez-Velarde, 127 F.3d 966, 968 (10th Cir.

1997) (quoting Koon, 518 U.S. at 96); see also United States v. Gauvin, 173 F.3d

798, 807 (10th Cir. 1999). “Even considered as one factor supporting a composite

mitigating circumstance,” we have required a defendant’s family circumstances to

be “unusual” in order to justify a departure. See United States v. Jones, 158 F.3d

492, 499 (10th Cir. 1998).

      In Jones, where the court considered the defendant’s “family responsibilities

not as the sole basis for departure, but in conjunction with ten other factors,” the

court concluded that “Mr. Jones’ family responsibilities [were] not sufficiently

unusual to render this discouraged factor a permissible basis for departure.” Id.

The court arrived at this conclusion, despite the fact that Mr. Jones’ imprisonment

deprived his three children of “substantial child support.” See id. Similarly, in

Rodriquez-Velarde, the court concluded the facts did not support a downward

departure where the defendant’s imprisonment left his three children, aged six,

eight, and eleven, without a parent to care for or provide for them. See 127 F.3d

at 968-69.

      Here, the sentencing judge recognized the unremarkable situation presented

by Ms. Contreras’ case:

             I realize that the fact that somebody has three children, in and
      of itself, is no reason to depart downward. God only knows how
      many hundreds of parents it’s been my misfortune to sentence. I
      realize every time I do it that that is breaking up a family, that it’s

                                         - 20 -
      going to work to a disadvantage to those children. And as the
      government points out, if I took that into consideration, I wouldn’t
      sentence people, I’d retire right now so I wouldn’t have [to] do this
      again, or I’d depart downward and get reversed every time, because I
      realize that is not a reason.

At the time of resentencing, Ms. Contreras’ three children were age 11, age 7, and

age 6. Two of them were living with their father and the third was living with her

grandmother. The children visited their mother only infrequently. Despite the

personal tragedy of Ms. Contreras’ family, we agree with the sentencing court that

her family circumstances were not sufficiently unusual to warrant a departure. See

Jones, 158 F.3d at 499. Consequently, we conclude that the totality of the

inappropriate bases cannot support the downward departure.

      Accordingly, we REVERSE the district court’s decision to depart

downward, and we REMAND for sentencing in conformity with this opinion.




                                       - 21 -
No. 97-2224, United States v. Contreras

McKAY, Circuit Judge, dissenting:



      I respectfully must dissent. I am not persuaded that U.S.S.G. § 5K2.12,

“Coercion and Duress,” is the proper framework for analyzing a claim of parental

influence.

      In this case, the district court partly justified its downward departure on “the

influence that was [w]ielded by [Ms. Contreras’ father,] Mr. Gabriel Aguirre.”

The court presumably based this determination on the following facts: Mr. Gabriel

Rodriguez-Aguirre managed a family-run organization specializing in the sale and

distribution of large amounts of marijuana and cocaine, see United States v.

Contreras, 108 F.3d 1255, 1258 (10th Cir. 1997), and he influenced his daughter,

the defendant in this case, to join his criminal enterprise. In analogizing

“Coercion and Duress” to “parental influence,” the majority tacitly concedes that

the Sentencing Guidelines do not directly address the notion of parental influence.

I think the analogy is an odd one that does not coincide with my experience. In

my view, a parent’s unique position vis-a-vis his or her child is substantially

different from the traditional notion of coercion. For several reasons, I believe

that the concept of parental influence does not fall within the rubric of coercion

and duress but is a distinct type of influence that was not considered by the

Guidelines.
      First, coercion analysis is inappropriate in all cases of parental influence.

While evidence of a threat of physical injury or damage to person or property may

exist in some cases, requiring such evidence in all cases asserting parental

influence ignores the nature of the filial relationship in which a child loves and

obeys a parent. Indeed, filial piety has been recognized as underlying a

permissible basis for a downward departure. See United States v. Monaco, 23

F.3d 793, 800 (3d Cir. 1994) (determining that defendant-father’s anguish over

bringing child into criminal activity was proper basis for downward departure,

especially where adult child had “dutifully and unquestioningly honor[ed] his

father’s request”).

      Additionally, I find it equally odd that conduct which justifies upward

departures does not justify downward departures for the victims of the conduct.

Circuit decisions which have sanctioned upward departures for a parent based on

the parent’s influencing a child to join the criminal activity are instructive. For

example, the Fourth Circuit held that an upward departure was warranted even

absent coercion where “the parent exposes the child to a drug business

environment and thereby facilitates the child’s ability to obtain illegal drugs.”

United States v. Locklear, 41 F.3d 1504, 1994 WL 642196, at **3 (4th Cir. 1994)

(Table). This court, as well as the First, Eighth, and Eleventh Circuits, have also

analyzed the parental-influence question without relying on coercion. See United


                                          -2-
States v. Forsythe, 156 F.3d 1244, 1998 WL 539462, at **4 (10th Cir. 1998)

(holding that the use of parental influence to induce one’s child to join in criminal

activity may provide a basis for upward departure); United States v. Ledesma, 979

F.2d 816, 822 (11th Cir. 1992) (affirming sentence enhancement under U.S.S.G.

§ 3B1.3 because defendant, as mother, held a position of trust which she abused

when she involved her daughter in the drug conspiracy); United States v. Jagim,

978 F.2d 1032, 1042 (8th Cir. 1992) (affirming upward departure partly based on

fact that defendant’s “nephew, while perhaps not a ‘vulnerable victim’ within the

meaning of U.S.S.G. § 3A1.1 . . . , nevertheless was dragged into the [tax shelter

fraud] conspiracy by his uncle in part because of the familial relationship”);

United States v. Porter, 924 F.2d 395, 399 (1st Cir. 1991) (upholding upward

departure based on finding that defendant had urged his son to rob another bank to

obtain money for his (defendant’s) bail); United States v. Christopher, 923 F.2d

1545, 1556 (11th Cir. 1991) (affirming upward departure that was premised in part

on the defendant’s “apparent willingness to corrupt members of his family,

including his own children, by involving them in criminal activities”); United

States v. Shuman, 902 F.2d 873, 875-76 (11th Cir. 1990) (affirming upward

departure under 18 U.S.C. § 3553(b) for defendant’s willful incorporation of her

son into the drug-trafficking business and his resulting chemical dependency and

easy access to drugs). Each of these cases recognized the unique ability of a


                                         -3-
parent, or parental figure, to influence a child. Cf. Jagim, 978 F.2d 1032 (uncle-

nephew relationship). I cannot see how the essence of that relationship would

change depending on whether the court is examining it for an upward or a

downward departure.

      It is also significant that nothing in the Guidelines indicates that § 5K2.12,

the coercion and duress factor, was intended to cover the parent-child

relationship. 1 Moreover, all of the cases mentioned above addressing whether

parental influence is a permissible basis for an upward departure sanctioned the

departures based on U.S.S.G. § 5K2.0 or 18 U.S.C. § 3553(a) and (b), after finding

that the Guidelines do not specifically discuss “the abuse of parental authority in a

criminal enterprise.” Forsythe, 1998 WL 539462, at **3; see, e.g., Shuman, 902

F.2d at 876 (stating that parental influence factor was not taken into consideration

by the Sentencing Commission in drafting the Guidelines and concluding that the

use of a custodial relationship to force child to engage in criminal conduct is a

valid aggravating factor); see also Locklear, 1994 WL 642196, at **3 (analyzing


      1
        In fact, I could find only one case in which the parent-child relationship
was analyzed in this context, based upon the defendant’s raising § 5K2.12 as a
claim of error. See United States v. Vela, 927 F.2d 197, 200 (5th Cir. 1991). In
that case, the Fifth Circuit rejected the defendant’s claim that the district court
erred in refusing to depart downward on the basis of parental coercion. The court
stated that no threat of violence to person or property occurred, and, “moreover,
any improper influence that may be attributed to [defendant’s] mother did not
amount to coercion so serious that, even without threats, it justified a downward
departure.” Id.

                                         -4-
propriety of upward departure based on parental influence under § 5K2.0); Jagim,

978 F.2d at 1042 (evaluating upward departure for parental influence under

§ 5K2.0 and 18 U.S.C. § 3553(b)); Porter, 924 F.2d at 399 (same). Likewise, no

section of the Guidelines, including § 5H1.6 (“Family Ties and Responsibilities”),

specifically addresses a parent’s influence over a child in the context of a

downward departure. In other words, no Guideline provision expressly prohibits

or discourages the consideration of parental influence in downward departure

decisions. At the same time, the Guidelines have aimed to provide special

protection to minors and others in custodial care, albeit in other contexts. See,

e.g., U.S.S.G. § 2D1.2 (prescribing sentence enhancement for distributing drugs to

a minor); § 2A3.1 (increasing sentence for sexual abuse if the victim was a minor

or in the custody, care, or supervisory control of the defendant).

      Finally, I think parental influence constitutes a mitigating circumstance

under 18 U.S.C. § 3553 which, under the right facts, could sustain a downward

departure. One kind of mitigating circumstance that would justify a downward

departure is one which “somehow reduces a defendant’s guilt or culpability. It is a

circumstance that ‘in fairness and mercy[] may be considered as extenuating or

reducing the degree of moral culpability.’” United States v. Newby, 11 F.3d 1143,

1148 (3d Cir. 1993) (citation omitted), limited as dicta by Monaco, 23 F.3d at 802-

03 (listing other circumstances which are relevant to and have justified downward


                                         -5-
departures even though not indicative of reduced guilt or culpability). I am of the

view that parental influence is exactly the type of mitigating circumstance which

may reduce a defendant’s guilt because it speaks directly to her personal

responsibility in entering the criminal enterprise.

      I therefore would hold that parental influence is a “‘mitigating

circumstance of a kind, or to a degree, not adequately taken into consideration by

the Sentencing Commission in formulating the guidelines.’” U.S.S.G. § 5K2.0

(quoting 18 U.S.C. § 3553(b)). Accordingly, where the facts of a case take it

outside the “heartland” of cases considered by the Guidelines, parental influence

may warrant a downward departure. See Koon v. United States, 518 U.S. 81, 96

(1996). For these reasons, I would analyze Ms. Contreras’ claim of parental

influence in its own right, unconstrained by a § 5K2.12 analysis.

      Admittedly, the evidence from which the sentencing court concluded that

parental influence provided a basis for a downward departure is not overwhelming.

However, in light of the great deference we owe to the sentencing court’s findings

that a particular defendant is within or outside the Guidelines’ heartland of cases

given all the facts of the case, see United States v. Collins, 122 F.3d 1297, 1302-

03 (10th Cir. 1997), and the alacrity with which we routinely sustain

“enhancements,” “upward departures,” and findings of “relevant conduct” on




                                         -6-
equally thin evidentiary support, I would have no trouble affirming the decision to

depart downward in this case. 2




      2
       Although I agree with the majority’s determination that the sentencing
court improperly based the downward departure on a disparity in sentences, I
would not remand this case because I think that the district court “‘would have
imposed the same sentence absent reliance on the invalid factor[].’” Collins, 122
F.3d at 1303 n.5 (quoting Koon, 518 U.S. at 113).

                                        -7-
