        UNITED STATES COURT OF APPEALS
                                 Tenth Circuit
                      Byron White United States Courthouse
                               1823 Stout Street
                            Denver, Colorado 80294
                                (303) 844-3157
Patrick J. Fisher, Jr.                                                                 Elisabeth A. Shumaker
Clerk                                                                                  Chief Deputy Clerk

                                             September 10, 1996


        TO: ALL RECIPIENTS OF THE CAPTIONED ORDER & JUDGMENT

        RE: 95-2198 USA v. Ramirez
            August 26, 1996 by The Honorable Carlos F. Lucero


                 Please be advised of the following correction to the captioned decision:

                 The first line of page two was omitted.

                 A corrected Order and Judgment is attached

                                                           Very truly yours,

                                                           Patrick Fisher, Clerk



                                                           Beth Morris
                                                           Deputy Clerk

        encl.
                         UNITED STATES COURT OF APPEALS
Filed 8/26/96
                                      TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff - Appellant,
 v.                                                           No. 95-2198
                                                      (D.C. No. CR-95-90-02-JP)
 LINDA SAINZ RAMIREZ,                                  (District of New Mexico)

          Defendant - Appellee.




                                   ORDER AND JUDGMENT*


Before TACHA, REAVLEY** and LUCERO, Circuit Judges.



      Defendant Linda Ramirez pled guilty in district court to charges of possession with

intent to distribute cocaine and marijuana. At sentencing, the court granted defendant a

downward departure of six levels from the offense level recommended in the presentence

report, due to a combination of Ramirez’s physical and mental condition and her family

responsibilities. Accordingly, the court imposed concurrent terms of 12 months


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
        Honorable Thomas M. Reavley, Senior Circuit Judge, United States Court of
Appeals for the Fifth Circuit, sitting by designation.
imprisonment, rather than the recommended 30-37 months. The government timely

appealed. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(b)(2), we affirm.

       On December 15, 1994, the defendant pulled into a border patrol checkpoint north

of Las Cruces, New Mexico. A border patrol agent searching her car found

approximately 30.5 pounds of marijuana in the spare tire well in the trunk. When

arrested, the defendant admitted that she knew the marijuana was in the car and that she

was to be compensated for transporting it from El Paso, Texas to Albuquerque, New

Mexico. She was released pending indictment.

       During the month of January 1995, Manuel Beltran-Leon arranged with an

informant to sell cocaine to an undercover police officer, and told the informant that the

cocaine was being stored in the defendant’s residence. On January 24, Beltran-Leon met

with the informant in a motel room, and agreed to have the defendant bring the cocaine to

the officer. When Ramirez arrived with a package containing approximately 424.7 grams

of cocaine, she, Beltran-Leon and two other co-defendants were arrested. Defendant

admitted that she was holding the cocaine for Beltran-Leon.

       In May 1995 the defendant pled guilty to one count of possession with intent to

distribute less than 500 grams of cocaine, 21 U.S.C. §§ 841(a)(1) and (b)(1)(C); 18

U.S.C. § 2, and one count of possession with intent to distribute less than 50 kilograms of

marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(D); 18 U.S.C. § 2. The probation officer

recommended a sentencing range of 30-37 months.


                                            -2-
       Prior to sentencing, the defendant requested a downward departure. In its motion

and during sentencing, the defense contended that the following factors warranted a

departure: (1) poor health (including diabetes); (2) extreme obesity; (3) severe

depression; (4) defendant’s daily care for her mother, a bed-ridden stroke victim; (5)

provision of assistance to her elderly father; and (6) sole care for her 14-year-old son.

Defendant also contended that her health problems would render her particularly

vulnerable in prison.

       The court granted a downward departure of six levels, based on a combination of

the factors set forth by the defendant, pursuant to USSG § 5K2.0. This reduced the

guideline imprisonment range from 30-37 months to 12-18 months. The court then

imposed a prison sentence at the bottom of that range: 12 month concurrent sentences.

In addition, the court imposed a three-year period of supervised release and a special

assessment of $100.

       A district court is required to impose a sentence within the Guideline range unless

it determines “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). In making this determination, the sentencing court is to consider

only the Guidelines, policy statements and commentary of the Commission. Id. We




                                             -3-
review such determinations for abuse of discretion. Koon v. United States, 116 S. Ct.

2035.

        This case does not implicate any factors which can never be the basis for a

departure. Aside from such factors -- race, sex, national origin, creed, religion, socio-

economic status, § 5H1.10; lack of guidance as a youth and similar circumstances, §

5H1.12; drug or alcohol abuse, § 5H1.4; and economic hardship as a form of duress, §

5K2.12 -- the Guidelines state that “the Commission does not intend to limit the kinds of

factors, whether or not mentioned anywhere else in the guidelines, that could constitute

grounds for departure in an unusual case.” USSG ch. 1, pt. A, intro. comment. 4(b)

(emphasis added).

        Nonetheless, all of the factors asserted here are either discouraged or unmentioned

grounds for departure. Mental, emotional and physical condition, as well as family ties

and responsibilities are “not ordinarily relevant in determining whether a sentence should

be outside the applicable guideline range.” §§ 5H1.3, 5H1.4 and 5H1.6. Accordingly,

“the court should depart only if the factor is present to an exceptional degree or in some

other way makes the case different from the ordinary case where the factor is present.”

Koon, 116 S. Ct. at 2045 -- in other words, if the factor takes the case out of the

“heartland” of typical cases, § 5K2.0. Regarding vulnerability in prison, a factor not

mentioned in the Guidelines but approved by the Court in Koon, the court must, “after

considering the structure and theory of both relevant individual guidelines and the


                                            -4-
Guidelines taken as a whole, decide whether it is sufficient to take the case out of the

Guideline’s heartland.” Koon, 116 S. Ct. at 2045 (quotation and citation omitted).

Finally, the Guidelines commentary states that

       [t]he 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 . . . even though none of the
       characteristics or circumstances individually distinguishes the case.
       However, the Commission believes that such cases will be extremely rare.

§ 5K2.0, comment. (emphasis added).

       The district court granted a downward departure under § 5K2.0, based on several

factors which it concluded would not suffice to justify a departure individually “but that,

in sum, . . . present a situation that is unusual to a degree not taken into account by the

Sentencing Commission.” Doc. 72 (District Court Judgment). We conclude that the

departure was not an abuse of the court’s discretion.

       We AFFIRM. The mandate shall issue forthwith.

                                            ENTERED FOR THE COURT



                                            Carlos F. Lucero
                                            Circuit Judge




                                             -5-
