Criminal Defense of Immigrants


§ 3.60 (B)

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(B)  Sentencing Guidelines.  In some cases, cultural background has been held to justify a downward departure under the United States Sentencing Guidelines.[199]  Other courts have held they are not required to take culture into account under the Guidelines as a mitigating factor.[200]  This is especially true with reference to American Indians with reservation backgrounds.[201] The courts declining to reduce Guidelines sentences on cultural mitigation grounds have done so in the belief that the Guidelines are mandatory and do not permit these downward departures.  The Supreme Court, however, held the Guidelines advisory, rather than mandatory,[202] so the Guidelines no longer disallow these downward departures.  United States District Judges are therefore free to reduce Guidelines sentences on cultural grounds if they are persuaded it is in the interests of justice to do so.  The same holds true with respect to claims that deportability alters the reasonable sentence.[203]

[199] E.g., United States v. Delgado, 994 F. Supp. 143 (E.D.N.Y. 1998) (downward departure justified by defendant’s background as young widow in Colombia trying to support two young children, and having her will virtually overborne by drug traffickers/loan sharks into attempting to import heroin); Kwan Fai Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991), aff’d, 970 F.2d 614 (9th Cir.), cert. denied, 507 U.S. 951 (1992); United States v. Decora, 177 F.3d 676 (8th Cir. 1999) (combination of reservation life plus extraordinary educational achievement and community leadership justified downward departure under USSG); United States v. Lipman, 133 F.3d 726 (9th Cir. 1997) (cultural assimilation can form basis for downward departure if the circumstances remove the case from the heartland); United States v. Somerstein, 20 F. Supp. 2d 454 (E.D.N.Y. 1988) (background as holocaust survivor, inter alia, justified downward departure; good example for casting culture as personal history); United States v. Delgack, 994 F. Supp. 143 (E.D.N.Y. 1998) (defendant’s background as young widow in Colombia trying to support two young children, and having her free will virtually overborne by drug traffickers/loan sharks to attempt to import heroin, justified downward departure); United States v. Vue, 865 F. Supp. 1353 (D. Neb. 1994) (background as Hmong war refugees with no formal education, illiterate, unable to speak English, and attempts to lead a decent life in the face of adversity justified downward departure); United States v. Big Crow, 898 F.2d 1326 (8th Cir. 1990) (defendant assaulted friend while drunk; downward departure affirmed because excellent employment history and consistent efforts to overcome adverse living conditions on Pine Ridge Reservation); United States v. One Star, 9 F.3d 60 (8th Cir. 1993) (defendant convicted of felon in possession of firearm; downward departure affirmed because defendant was not dangerous, possessed weapon for self defense, inter alia, because of unusual circumstances of life on reservation).

[200] E.g., United States v. Natal Rivera, 879 F.2d 391 (8th Cir. 1989) (no violation of due process to fail to consider culture as a mitigator); United States v. Prestemon, 929 F.2d 1275 (8th Cir.), cert denied, 112 S.Ct. 220 (1991) (status as biracial adopted child not a proper basis for departure; abuse of discretion found); United States v. Natal-Rivera, 879 F.2d 391 (8th Cir. 1989) (status as Puerto Rican improper basis for downward departure, citing 1836 case and guidelines proscription on race, culture, ethnicity as basis).

[201] United States v. Weise, 28 F.3d 672 (8th Cir. 1997) (difficulty of reservation life insufficient); United States v. White Buffalo, 10 F.3d 575 (3th Cir. 1993) (record insufficient regarding family life, reservation life; downward departure affirmed on alternate ground).

[202] United States v. Booker, 543 U.S. 220 (2005).

[203] See United States v. Olivares, 473 F.3d 1224 (D.C. Cir. Dec. 19, 2006) (rejecting claim district court erred in denying a downward departure because the defendant was a noncitizen facing deportation).