                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1789
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
     v.                                  * District Court for the
                                         * District of Minnesota.
Jesus Ramirez-Marquez,                   *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: February 12, 2004
                                 Filed: July 8, 2004
                                  ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, and RILEY, Circuit
      Judges.
                         ___________

RILEY, Circuit Judge.

      The Government appeals the district court’s sentencing decision to grant a
downward departure to Jesus Ramirez-Marquez (Ramirez-Marquez) for not
contesting deportation. For the reasons discussed below, we reverse the district court,
vacate the sentence, and remand for resentencing consistent with this opinion.

I.     BACKGROUND
       Ramirez-Marquez, an alien from Mexico, pled guilty to possession with intent
to distribute in excess of 500 grams of cocaine. At sentencing, the district court
determined the applicable range under the United States Sentencing Guidelines
(Guidelines) was 37 to 46 months. At that time, Ramirez-Marquez moved for a
downward departure for his willingness to waive his rights to resist deportation,
relying on United States v. Jauregui, 314 F.3d 961 (8th Cir. 2003). Ramirez-Marquez
did not provide notice he was going to make such a motion. In response to the newly
raised motion, the Government voiced its opposition to the departure:

      Your Honor, I’ve had the opportunity, [] just within the last 15 minutes,
      to look at [Jauregui], and also the motion. The only thing I would point
      out to the Court is that the defendant in [Jauregui] was a resident alien,
      having more due process rights than Mr. Ramirez-Marquez. The
      government [] objects, or we indicate to the Court it does not believe
      that Mr. Ramirez-Marquez should be entitled to departure for those
      grounds [i.e., for his willingness to waive deportation rights].

       In considering Ramirez-Marquez’s motion for a downward departure, the
district court pondered the applicability of Jauregui given Ramirez-Marquez’s
immigration status:

      It is clear that as a resident alien, and the Eighth Circuit recognized it,
      that person being a landed immigrant, has more substantial rights. . . .
      While [Ramirez-Marquez] may not be a resident alien, he is an alien,
      and under those circumstances has certain INS hearing rights. I will
      consider that to a minor extent, but the Eighth Circuit did make clear
      that [a downward departure] was reserved for landed immigrants as
      opposed to illegals.

The district court also recognized Ramirez-Marquez’s limited immigration rights:

      You come to the United States, are present in violation of the law, and
      then when you’re here you violate the law again. Not a good thing to
      do. You have asked for consideration for the fact that you will go back
      voluntarily to Mexico. You didn’t have very many rights in the first

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      place because you were not here legally. . . . The net result [is] you have
      lost your right to come back at all.

Notwithstanding its questioning of Ramirez-Marquez’s entitlement to a downward
departure and its recognizing Ramirez-Marquez had limited deportation rights, the
district court granted a downward departure “from the guideline range by 6 months
because of [Ramirez-Marquez]’s willingness not to contest his deportation
proceedings, in accord with [Jauregui].” The district court then sentenced Ramirez-
Marquez to 31 months imprisonment. The district court did not discuss the evidence
upon which it relied in granting Ramirez-Marquez a downward departure for his
willingness not to contest deportation. The district court also did not discuss any
other Eighth Circuit authority besides Jauregui.

       On appeal, the Government argues the district court’s sentence requires
reversal because a downward departure is not available to an illegal alien convicted
of a felony based on the alien’s willingness to waive his minimal rights to contest
deportation. The Government contends the district court was required to find
Ramirez-Marquez waived a nonfrivolous defense to deportation before granting a
downward departure. Ramirez-Marquez contends the district court’s downward
departure faithfully followed Eight Circuit precedent.

II.    DISCUSSION
       A.    Standard of Review
       Before discussing the merits of the downward departure issue, we address the
disputed standard of review. The Government contends we must review de novo the
district court’s decision to grant the downward departure. Ramirez-Marquez
contends the Government failed to raise the issue confronting our court, such that we
must employ a plain error standard of review. Ramirez-Marquez lodged a single
objection to the Presentence Investigation Report, which did not mention a request
for a downward departure based on a waiver of contesting deportation. Instead, at the

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sentencing hearing, for the first time and without notice, Ramirez-Marquez, citing
Jauregui, moved for a downward departure. After briefly reviewing Jauregui, the
Government argued the case did not assist Ramirez-Marquez with his downward
departure motion. In its brief response, the Government specifically distinguished
Ramirez-Marquez, an illegal alien, from the defendant in Jauregui, a legal resident
alien. We conclude the Government preserved the issue for appeal.

       Even though we reject a plain error standard of review, we still must determine
the appropriate standard of review because, during the pendency of this appeal,
Congress modified the standard for reviewing departures from the Guidelines. See
Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today
Act of 2003 (PROTECT Act), Pub. L. No. 108-21, § 401(d), 117 Stat. 650, 670
(2003) (amending 18 U.S.C. § 3742(e)). While the Government maintains our
standard of review is de novo, Ramirez-Marquez contends the standard of review
cannot be de novo because Congress does not have the power to change the standard
of review for cases pending review. Although the district court sentenced Ramirez-
Marquez before the PROTECT Act became law, our circuit has already held the
PROTECT Act’s de novo standard of review applies to pending appeals. See United
States v. Gonzales-Ortega, 346 F.3d 800, 802 (8th Cir. 2003). Thus, under the newly
enacted PROTECT Act, we review de novo a departure decision, inter alia, “based
on a factor that–(i) does not advance the objectives set forth in [18 U.S.C. §]
3553(a)(2); or (ii) is not authorized under section 3553(b); or (iii) is not justified by
the facts of the case.” 18 U.S.C. § 3742(e)(3)(B).

       B.     Downward Departure
       District courts may depart from the Guidelines generally when “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.” Id.
§ 3553(b)(1); see U.S.S.G. § 5K2.0 (2002); Koon v. United States, 518 U.S. 81, 98

                                          -4-
(1996) (“Before a departure is permitted, certain aspects of the case must be found
unusual enough for it to fall outside the heartland of cases in the Guideline.”). The
district court departed downward based on Ramirez-Marquez’s willingness not to
contest his deportation proceedings. Ramirez-Marquez contends that, because he
gave up his rights to contest deportation, including his right to contest his status as
an illegal alien, the district court correctly granted the downward departure.

       The Government essentially contends Ramirez-Marquez gave up nothing to
receive the downward departure. Quoting 8 U.S.C. § 1228(c), the Government argues
Ramirez-Marquez is “conclusively presumed to be deportable from the United States”
because he is “[a]n alien convicted of an aggravated felony.” Classifying Ramirez-
Marquez as an illegal alien convicted of a controlled substance violation, the
Government contends Ramirez-Marquez is subject to expedited removal proceedings.
See 8 U.S.C. §§ 1227(a)(2)(B)(i), 1228(b). In response, Ramirez-Marquez argues his
legal status, i.e., whether he is a citizen, resident alien, or illegal alien, “is a question
of law that no court has yet settled, and [his] willingness to accept [a classification
as an illegal alien] is precisely what he offered in support of the challenged
departure.”

       Ramirez-Marquez argues settled Eighth Circuit law supports the district court’s
downward departure decision. We disagree. Our circuit law does not establish a
right to a downward departure for any alien who is willing to give up any rights he
may have to contest deportation. Instead, circuit caselaw simply recognizes the
general availability of a downward departure in cases involving an alien willing to
waive his right to an administrative deportation proceeding. See, e.g., Jauregui, 314
F.3d at 963-64 (holding a district court has the discretion to depart downward when
a resident alien forfeits substantial rights by waiving an administrative deportation
hearing, which substantially assists the administration of justice); United States v.
Sera, 267 F.3d 872, 873-75 (8th Cir. 2001) (holding trial counsel’s failure to move
for a downward departure for a deportable alien’s willingness to waive resistance to

                                            -5-
deportation did not constitute ineffective assistance of counsel); United States v.
Ramirez-Bernal, 187 F.3d 644, 1999 WL 475565, at *1-3 (8th Cir.1999) (unpublished
table decision) (remanding case for resentencing because district court denied motion
for a downward departure by alien “lawfully living and working in the United States”
because the Government did not join the motion, a factor unmentioned in the
Guidelines); United States v. Hernandez-Reyes, 114 F.3d 800, 803 (8th Cir. 1997)
(holding district court’s denial of the Government’s motion for a downward departure
for an alien agreeing to an administrative order of deportation was unreviewable,
because the district court understood its authority to depart downward); United States
v. Cruz-Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996) (holding “the district court erred
as a matter of law by incorrectly believing that it could not depart downward from the
guidelines on the basis of defendant’s waiver and consent to administrative
deportation upon the filing of a joint motion by the parties”). Even in Jauregui, 314
F.3d at 963-64, the case upon which Ramirez-Marquez and the district court relied
for the downward departure, our circuit discussed a heightened standard for granting
a motion for downward departure based on an alien’s willingness to waive
deportation rights. Expounding on Jauregui, we now clarify the standard to be
applied in cases involving a request for a downward departure based on a willingness
to waive deportation rights.

        We hold a defendant seeking a downward departure for waiving deportation
rights must demonstrate a colorable, non-frivolous defense to deportation and show
a waiver of that defense would substantially assist the administration of justice. Other
circuits have already adopted a similar standard. See, e.g., United States v. Sentamu,
212 F.3d 127, 137 (2d Cir. 2000); United States v. Mignott, 184 F.3d 1288, 1291
(11th Cir. 1999); United States v. Marin-Castaneda, 134 F.3d 551, 555 (3d Cir. 1998).
Indeed, our circuit has come close to expressing this standard, but has not expounded
on its reasoning. In Jauregui, “a lawful permanent resident of the United States” was
convicted of possession with intent to distribute methamphetamine. Jauregui, 314
F.3d at 962. The permanent resident alien sought a downward departure for waiving

                                          -6-
his right to an administrative deportation hearing, and the district court granted a
four-level departure. Id. Affirming the district court’s sentence, we held “a waiver
of the administrative deportation proceeding due a resident alien is a sufficient basis
for departure.” Id. at 963-64. The court’s rationale was a resident alien gives “up
substantial rights in waiving an administrative deportation hearing,” which
“substantially assist[s] in the administration of justice.” Id. at 964.

        We conclude the standard we clarify today is required for two main reasons.
First, this standard will assure downward departures will only be granted in atypical,
rather than routine, cases. Second, this standard will reduce unwarranted disparities
in sentencing convicted aliens in our circuit.

       Exercising its authority to write the Guidelines, the Sentencing Commission
(Commission) specifically discussed its vision of limited use of departures. See
U.S.S.G. ch. 1, pt. A, § 4(b) (2002).1 The Commission made clear departures only
apply to atypical cases, and departures on grounds not mentioned in the Guidelines
“will be highly infrequent.” Id.; see Koon, 518 U.S. at 96 (stating “[t]he court must
bear in mind the Commission’s expectation that departures based on grounds not
mentioned in the Guidelines will be ‘highly infrequent’”). If standardless departures
were the rule, i.e., district courts could grant departures to any defendant willing to
waive any deportation rights, then departures would no longer be granted in atypical
cases or on a highly infrequent basis. See Sentamu, 212 F.3d at 138 (“If all
defendants who stipulate to deportation were routinely rewarded with downward
departures, then departures would, inappropriately, become the rule rather than the
exception.”). We also fear frequent, standardless application of downward departures
in cases involving aliens might constructively amend the Guidelines without input


      1
      In 2003, the Commission transferred the original introduction to the
Guidelines to an editorial footnote, which is where the cited material now resides.
See U.S.S.G. § 1A1.1, cmt. n.1 (ed. note) (2003).

                                         -7-
from the Commission. See, e.g., U.S.S.G. § 5K2.0, cmt. n.3(A)(ii) (2003) (stating
that, because “the Commission has continued to monitor and refine the guidelines
since their inception to take into consideration relevant circumstances in sentencing,
it is expected that departures based on such unidentified circumstances will occur
rarely and only in exceptional cases”). Finally, if a defendant attempts to waive
deportation rights, but really does not forfeit any rights or assist the administration
of justice, we do not consider the defendant’s “waiver” as being atypical from any
other criminal case involving an alien facing deportation. See Mignott, 184 F.3d at
1291 (recognizing “a defendant’s consent to a deportation against which he has no
apparent defense would be a meaningless concession that fails to remove him from
the heartland of other alien criminal defendants facing deportation”). For these
reasons, the standard we enunciate today should further the Commission’s goal of
preserving departures for atypical cases.

       The Guidelines also seek to reduce unwarranted disparities in sentencing
similarly situated defendants. U.S.S.G. ch. 1, pt. A, § 3 (2002) (stating “Congress
sought reasonable uniformity in sentencing by narrowing the wide disparity in
sentences imposed for similar criminal offenses committed by similar offenders”).
Without a workable standard, each defendant seeking a downward departure would
rely on the particular views of each sentencing judge, which may result in variant
sentences for similarly situated aliens. See Sentamu, 212 F.3d at 138 (“If such
variations were to occur, the ruling that such departures are in general permissible,
unrelated to particular characteristics of the individual defendant or to any special
feature of his case, would have undermined the goal of reducing unwarranted
disparities in the sentences of similarly situated defendants.”). For example, two
defendants with identical alien status could commit identical crimes in different
districts and both seek downward departures for waiving deportation rights. Without
a consistent standard to apply, the sentencing courts may not agree on whether to
grant a downward departure. Recognizing district courts routinely confront convicted
aliens with varying immigration status, the standard we enunciate today should

                                         -8-
further Congress’s goal of avoiding unwanted and unwarranted sentencing disparities
for similarly situated aliens.

      The district court in Ramirez-Marquez’s case did not discuss the standard it
applied or the evidence upon which it relied in deciding to grant a downward
departure. Instead, the district court seemed willing to grant Ramirez-Marquez a
downward departure regardless of what deportation rights Ramirez-Marquez waived.
Reviewing the record de novo, including the Presentence Investigation Report and
the sentencing transcript,2 we are unable to conclude Ramirez-Marquez has (1)
demonstrated a colorable, non-frivolous defense to deportation or (2) shown a waiver
of that defense would substantially assist the administration of justice. Given
Ramirez-Marquez’s reliance on Jauregui, which specifically discussed a heightened
standard for a downward departure, Ramirez-Marquez had ample opportunity to
present his downward departure request to the district court, but waited until the last
minute at sentencing to request the departure. Consequently, we are provided no
evidence to support the district court’s decision to grant Ramirez-Marquez a
downward departure.

       Finally, we do not intend to transform sentencing proceedings into immigration
hearings. Simply granting downward departures without considering precisely what
rights the defendant is waiving serves no purpose other than to shorten that particular
defendant’s sentence. Therefore, requiring defendants seeking downward departures
for waiving deportation rights to demonstrate a colorable, non-frivolous defense to
deportation and show a waiver of that defense would substantially assist the



      2
       We have also reviewed Ramirez-Marquez’s brief on appeal, searching for
evidence of what deportation rights Ramirez-Marquez waived to receive a downward
departure. Ramirez-Marquez apparently takes the position that he is entitled to a
downward departure, regardless of the evidence presented or what deportation rights
he waived. That is not the law.

                                         -9-
administration of justice should protect similarly situated alien defendants and assure
departures will be a highly infrequent occurrence in only atypical cases.

III.  CONCLUSION
      For the reasons discussed, we reverse the district court’s downward departure
decision, vacate the sentence, and remand for resentencing.
                       ______________________________




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