                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-25-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4451




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                                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    No. 03-4451


                         UNITED STATES OF AMERICA,
                                           Appellant

                                         v.

                             CYNTHIA RODRIGUEZ


                    Appeal from the United States District Court
                             for the District of New Jersey
                           (D.C. Criminal No. 02-cr-00861)
                   District Judge: Honorable Katharine S. Hayden


                               Argued July 12, 2004

        Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.

                              (Filed: August 25, 2004)


George S. Leone
Ricardo Solano, Jr. [ARGUED]
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
 Counsel for Appellant

K. Anthony Thomas [ARGUED]
Office of Federal Public Defender
972 Broad Street
Newark, NJ 07102
 Counsel for Appellee
                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Cynthia Rodriguez was arrested at Newark International Airport when nearly three

kilograms of heroin were discovered in suitcases she had brought into the United States

from Panama. On November 18, 2002, she pleaded guilty to importation of heroin in

violation of 21 U.S.C. §§ 952(a) and 960(b)(1)(A), a class A felony with a mandatory

minimum sentence of ten years imprisonment. Under the United States Sentencing

Guidelines, her sentencing range was 46 to 57 months, which includes adjustments for

minor role and acceptance of responsibility. Ultimately, the District Court imposed a

sentence of 13 months to be served at a Bureau of Prisons halfway house, after granting

Rodriguez’s motion for a downward departure based on her youth and her post-offense

rehabilitation.1

       The Government filed a timely appeal, arguing that the downward departure was

erroneously granted and, in the alternative, that the extent of the departure was

unreasonable. The District Court had jurisdiction based on 18 U.S.C. § 3231, and we

have jurisdiction to consider the Government’s appeal of the sentencing order pursuant to




   1
    Because Rodriguez was eligible for the “safety valve” provisions under 18 U.S.C. §
3553(f) and U.S.S.G. § 5C1.2(a), the District Court was permitted to impose a sentence
below the statutory minimum.

                                             2
28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). We will vacate Rodriguez’s sentence and

remand for resentencing by the District Court, instructing the Court to impose a sentence

that is within the applicable Guideline range.




                                               I.

       As we write solely for the parties, we include only those facts that are relevant to

the issues presented by this appeal. In April of 2002, Rodriguez ran away from her

family’s home in Florida and fled to New York to stay with Juan Carlos Rivera, a man

she had met over the Internet. At the time, Rodriguez was eighteen years old. Her desire

for independence apparently led her to flee from her parents, whom she saw as strict and

overprotective. Soon after arriving in New York, Rodriguez learned that Rivera had

sexual motivations for asking her to stay with him, and she moved out of his home. She

began staying with another man named Roberto, whom she had met in New York.

Knowing that she was unable to support herself, Roberto offered Rodriguez a chance to

make $20,000 by traveling with him to Panama City and bringing back narcotics.

Rodriguez agreed to participate in his plan.

       While preparations were made for the trip and travel documents were obtained for

those involved, Roberto and his associates kept watch over Rodriguez. In June of 2002,

Rodriguez went to Panama City and remained there for approximately one month. The

day before her return to the United States, she was given two suitcases that contained



                                               3
drugs, concealed under false bottoms. She packed her belongings in the suitcases and

flew back to Newark International Airport on June 30, 2002. She was arrested at the

airport when the drugs were discovered during a routine Customs examination. She

immediately admitted her guilt and cooperated with law enforcement officers by

explaining her role in the scheme.

       This was Rodriguez’s first adult arrest, and she had no prior convictions. During

the several months that she spent in pretrial detention, she took a preparatory course for

the General Educational Development (“GED”) test, volunteered as a bilingual

interpreter, taught fellow inmates to read and write in English, and took religious courses.

After she was released on bail, she expressed a desire to speak about her experience at her

local high school. She also moved back in with her family, obtained a high school

equivalency diploma and began taking cosmetology classes.

       Rodriguez pleaded guilty, and was subsequently sentenced on October 20, 2003.

After hearing statements from Rodriguez and her father, as well as argument by counsel,

the United States District Court for the District of New Jersey granted her motion for a

downward departure, finding that her youth and her post-offense rehabilitation were

sufficiently extraordinary to warrant a reduced sentence. Rodriguez received what

amounted to a ten-level departure, and was sentenced to 13 months imprisonment,

followed by five years of supervised release. The District Court recommended that the

term of imprisonment be served at a halfway house run by the Bureau of Prisons in



                                             4
Florida, where Rodriguez would be able to continue taking her cosmetology classes.

       In explaining its decision to depart, the District Court focused on Rodriguez’s age,

the improvement in her relationship with her family, her small role in the importation

scheme, her lack of life experience, and a desire to avoid impeding Rodriguez’s ongoing

rehabilitation. Taken together, the District Court concluded that these considerations

supported a departure, and that 13 months in a halfway house would be appropriate

punishment for Rodriguez’s offense. The Government filed this timely appeal.




                                               II.

       The Government challenges Rodriguez’s downward departure, arguing that it was

not justified by the facts of this case, and, in the alternative, that the extent of the

departure was unreasonable. The recently-enacted PROTECT Act altered our standard of

review in cases where the district court has granted a departure.2 As we explained in

United States v. Dickerson, No. 03-4450, slip op. at 14-15 (3d Cir. Aug. 24, 2004), the

modified standard requires us to conduct a de novo review of the following issues:

whether the departure advances the objectives set forth in § 3553(a)(2); whether the


   2
     This case was scheduled for oral argument on the same day as United States v.
Dickerson, No. 03-4450 (3d Cir. Aug. 24, 2004), as the cases raised the same issue
regarding the PROTECT Act and its applicability to cases in which appeals were pending
when the Act went into effect, and the parties coordinated their discussions of this point
in their briefs and before the court. We resolved the Ex Post Facto question in Dickerson,
slip op. at 13, finding that no such violation occurs when we apply the new standard to
pending cases. Thus, we will apply the de novo standard of review here.

                                                5
departure is authorized under § 3553(b); and whether the departure is justified by the facts

of the case. See 18 U.S.C. § 3742(e). If, based on those inquiries, we determine that a

departure was warranted, we must then review the extent of the departure for abuse of

discretion. Dickerson, slip op. at 15. Here, our analysis will focus on whether the

departure was justified under the circumstances here, and if so, whether the extent was

appropriate, as those are the only issues that are contested by the Government.




                                             III.

       Rodriguez’s motion for a downward departure was based on age, which is

addressed by § 5H1.1 of the Guidelines, and post-offense rehabilitation, which we

recognized as a permissible basis for a departure in United States v. Sally, 116 F.3d 76

(3d Cir. 1997).3 She also sought a departure based on a combination of those two

considerations, pursuant to § 5K2.0 of the Guidelines. However, as we will explain

below, we are not convinced that either factor, considered alone or in combination, can

support a departure on the facts of this case.

       First, regarding the District Court’s reliance on Rodriguez’s youth, § 5H1.1

indicates that “[a]ge (including youth) is not ordinarily relevant in determining whether a


   3
    The District Court mistakenly referred to § 5K2.19 as a basis for its consideration of
post-offense rehabilitation. That particular provision of the Guidelines deals with post-
sentencing rehabilitation, and is therefore inapplicable here. However, post-offense
efforts, including those made following a defendant’s arrest, are recognized as a departure
factor in our court’s decision in Sally.

                                                 6
sentence should be outside the applicable guideline range.” The provision goes on to

indicate that age is generally only a relevant consideration “when the defendant is

elderly” and a term of imprisonment might be exceptionally problematic. Further, we

have indicated that a defendant who is eighteen at the time of her offense is not rendered

extraordinary by her youth alone. See United States v. Shoupe, 929 F.2d 116, 120 (3d

Cir. 1991); see also Sally, 116 F.3d at 77-78. Rodriguez acknowledges this and contends

that her case is exceptional based on a combination of her youth, her immaturity, her lack

of family guidance at the time of the offense, her naivete, her role as a pawn in the

importation scheme, and her impetuous nature.

       We agree with the Government that many of the characteristics listed by Rodriguez

are, in reality, synonyms for “youth,” and there is nothing about Rodriguez or her offense

that removes her situation from the heartland of cases involving comparable drug crimes.4

In the context of a typical drug courier case, nothing about Rodriguez herself or the

circumstances surrounding her offense renders this case exceptional. Unfortunately, it is

not uncommon for eighteen-year-olds to commit narcotics-related offenses, and those

wishing to import drugs using couriers in this fashion often seek young, naive men and

women without extensive criminal experience. Thus, Rodriguez’s youth alone is not

extraordinary and does not warrant a downward departure here.


   4
    Additionally, one factor that was heavily relied upon by both Rodriguez and the
District Court – lack of guidance from her family at the time of the offense – is explicitly
prohibited as a departure consideration under § 5H1.12 of the Guidelines.

                                              7
       Second, with respect to post-offense rehabilitation, such efforts can only form the

basis for a departure where the defendant has shown a “real, positive behavioral change”

and a “commitment to repair and rebuild” her life. United States v. Yeaman, 248 F.3d

223, 228 (3d Cir. 2001). Further, the defendant’s efforts must be remarkable, rendering

her case exceptional when compared to efforts made by defendants in typical cases,

especially because ordinary post-offense rehabilitation is already accounted for by the

adjustment for acceptance of responsibility under § 3E1.1 of the Guidelines. See Sally,

116 F.3d at 81 n.1. As noted, Rodriguez’s efforts here included studying for and earning

her GED, acting as an interpreter while in jail, tutoring fellow inmates in English, taking

religious and cosmetology classes, and making amends with her family.

       Again, we are compelled to agree with the Government that these efforts, while

certainly commendable, are not extraordinary. We recognize that there has been a shift in

Rodriguez’s outlook on life and her attitude toward her family, and that she has made

strides in improving herself during a relatively short period of time. However, a review

of other cases involving post-offense rehabilitation convinces us that the circumstances

here are not exceptional. See, e.g., Yeaman, 248 F.3d at 228-29 (concluding that efforts

were not exceptional where the defendant learned Spanish, sang in prison choir, tutored

other inmates, and was considered to be a model prisoner); United States v. Reyes, 152 F.

Supp. 2d 806, 808 (E.D. Pa. 2001) (denying departure where defendant took educational

courses and parenting workshops, and participated in a drug treatment program); cf.



                                             8
United States v. Bradstreet, 207 F.3d 76, 78-79 (1st Cir. 2000) (granting a departure

where the defendant tutored other inmates, developed a curriculum and taught adult

continuing education classes, completed a boot camp program, assisted the prison

chaplain, volunteered to help with the prison parenting program, and lectured at local

colleges about business ethics).

       We therefore conclude that Rodriguez’s rehabilitative efforts alone were not

sufficient to warrant a downward departure. Additionally, we do not think that a

combination of her age and post-offense rehabilitation will support a departure. Neither

factor alone renders her case extraordinary, nor do the two factors, when added together,

remove her situation from the heartland of comparable cases. Rodriguez is relatively

young, and she has made some commendable efforts at improving herself as a result of

this offense, but she is not substantially distinguishable from many other criminal

defendants who commit similar offenses. Thus, no departure from the Guideline range is

warranted in her case.5

                                            IV.

       Accordingly, we will vacate Rodriguez’s sentence and remand for resentencing

consistent with this opinion, at which time the District Court shall impose a sentence

within the appropriate Guideline range of 46 to 57 months.




   5
   Because we conclude that the departure was not justified on the facts of the case, we
need not examine the extent of the departure that was granted.

                                             9
