(A)  Culture as Mitigation Under the Guidelines.  Some decisions hold federal courts need not consider cultural issues as mitigating factors.[91]  One line of authority, however, found no error in refusing to depart downward on grounds of the cultural assimilation of the defendant, since the court did not state it lacked the authority to do so.[92]  Others accord significance to the defendant’s culture in computing an appropriate sentence.[93] Some courts have held open the possibility that cultural differences may provide a basis for a downward departure under the Sentencing Guidelines.[94]

[91] E.g., United States. v. Natal Rivera, 879 F.2d 391 (8th Cir. 1989) (sentencing guidelines did not violate due process by failing to take account of the defendant’s cultural background as a mitigating factor).

[92] United States v. Sanchez-Valencia, 148 F.3d 1273 (11th Cir. 1998); United States v. Ulloa-Porras, 246 F.3d 683 (10th Cir. 2001); but see United States v. Ebolum, 72 F.3d 35 (6th Cir. 1995) (court had authority to review district court’s holding it had no discretion to grant downward departure on ground of noncitizen’s deportable status).

[93] E.g., Kwan Mak v. Blodgett, 754 F. Supp. 1490 (W.D. Wash. 1991) (vacating sentence for ineffective assistance of counsel since counsel failed to present mitigating evidence concerning defendant’s immigration history); People v. Superior Court, 7 Cal. Rptr. 2d 177 (Cal. Ct. App. 1992) (affirming trial court’s order of probation for immigrant on basis that defendant’s failure to express remorse resulted from language and cultural barriers); People v. Chen, No. 87-7774 (Sup. Ct. N.Y. C. Dec. 2, 1988) (Chinese values about adultery and loss of manhood mitigated offense of killing wife after she admitted having an affair, resulting in probationary sentence). See also United States v. Guzman, 236 F. 830 (7th Cir. 200l) (reversing as unwarranted downward departure from guidelines range because of “cultural heritage” but declining to hold guidelines categorically “forbid consideration of ethnicity or cultural heritage” in the sentencing deci­sion [and that] doing so [would] exclude all possibility of consideration of cultural factors in cases that we cannot yet foresee”); United States v. Decora, 177 F.3d 676, 679 (8th Cir. 1999); United States v. Tomono, 143 F. 1401, 1404 and n.2 (11th Cir. 1998); United Slates v. Yu,  954 F.2d 951, 954 (3d Cir. 1992). 

[94] See United States v. Yu, 954 F.2d 951, 957-959 (3d Cir. 1992); United States v. Valdez-Gonzalez, 957 F.3d 643 (9th Cir. 1992) (socio-economic conditions may be considered in determining whether the defendant’s situation is sufficiently extraordinary to allow for a downward departure); United States v. Reyes-Campos, 293 F. Supp. 2d 1252 (M.D. Ala. 2003); United States v. Martinez-Alvarez, 256 F. Supp. 2d 917 (E.D. Wis. 2003).

SENTENCE " FEDERAL " CONCURRENT OR CONSECUTIVE TO STATE SENTENCE
Setser v. United States, ___U.S. ___, 132 S.Ct. 1463 (March 28, 2012) (district court had inherent authority to impose a federal sentence consecutive to a yet to be imposed state one, even though the state court then partially foiled the intent of the district court by ordering the state one served concurrently).

CRIM DEF - SENTENCE - GUIDELINES - IMMIGRATION CONSEQUENCES AS A FACTOR TO CONSIDER IN IMPOSING SENTENCE
There is a conflict in the circuits as to whether a federal court may consider immigration consequences to depart downward. A number of cases hold that it may. United States v. Farouil, 124 F.3d 838 (7th Cir. 1997); United States v. Mason, 966 F.2d 1488 (D.C. Cir. 1992); United States v. Bautista, 258 F.3d 602 (7th Cir. 2001); United States v. Tejeda, 146 F.3d 84 (2d Cir. 1998); United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005). Others hold that immigration consequences may not be considered under the Guidelines. United States v. Maung, 320 F.3d 1305 (11th Cir. 2003); United States v. Aleskerova, 300 F.3d 286 (2d Cir. 2002).

Fifth Circuit

CATEGORICAL ANALYSIS " FEDERAL SENTENCING GUIDELINES COMMENTARY IS BINDING ON THE COURTS IN CRIMINAL CASES
United States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (guidelines commentary is binding as though it were in the guidelines themselves).

Ninth Circuit

SENTENCE - COST OF IMPRISONMENT TO SOCIETY NOT A PROPER FACTOR IN ASSESSING REASONABLENESS OF SENTENCE
United States v. Tapia-Romero, 523 F.3d 1125 (9th Cir. May 1, 2008) (cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. 3553(a) and 3582(a)).

SENTENCE - COST OF IMPRISONMENT TO SOCIETY NOT A PROPER FACTOR IN ASSESSING REASONABLENESS OF SENTENCE
United States v. Tapia-Romero, 523 F.3d 1125 (9th Cir. May 1, 2008) (cost to society of imprisoning a defendant is not a factor to be considered in determining the appropriate length of a defendant's term of imprisonment under 18 U.S.C. 3553(a) and 3582(a)).

Other

PRACTICE ADVISORY " POST CON RELIEF " FEDERAL " SENTENCE PROHIBITION AGAINST SENTENCE BASED ON RELEVANT CONDUCT ALREADY THE BASIS OF A SENTENCE
Counsel should negotiate sentence to take into account all of the relevant conduct so if the client is charged in another district, the sentence in the second district cannot punish that conduct a second time. U.S.S.G. 5G1.3(b). Several cases prevented prosecutors from later federal prosecutions following a plea in a different district. United States v. Gebbi, 294 F.3d 540 (3d Cir. 2002); United States v. Randolph, 230 F.3d 243 (6th Cir. 2000); United States v. Carter, 454 F.2d 426 (4th Cir. 1972); United States v. Von Thournout, 100 F.3d 590 (8th Cir. 1996). The DOJ Dual and Successive Prosecution Policy (the "Petite Policy"), U.S. Attorney's Manual 9-2.031, is also helpful. See also ibid., 9-27.641 (Multi-District (Global) Agreement Requests (This policy establishes guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding. See Rinaldi v. United States, 434 U.S. 22, 27, (1977); Petite v. United States, 361 U.S. 529 (1960). Although there is no general statutory bar to a federal prosecution where the defendant's conduct has already formed the basis for a state prosecution, Congress has expressly provided that, as to certain offenses, a state judgment of conviction or acquittal on the merits shall be a bar to any subsequent federal prosecution for the same act or acts. See 18 U.S.C. 659, 660, 1992, 2101, 2117; see also 15 U.S.C. 80a-36, 1282.").

SAFE HAVENS " FEDERAL " MISDEMEANORS " OFFENSES WITH ONE YEAR MAXIMUM Finding and Creating Federal Misdemeanors with One-Year Maximum Sentences
The federal accessory-after-the-fact statute, 18 U.S.C. 3, can be a tool for creating misdemeanors. Any federal offense with a two-year maximum can be reduced to a misdemeanor (with a one-year maximum) by pleading to accessory after the fact to that offense. This is useful where it is important to have a misdemeanor conviction, rather than a felony. E.g., aggravated felony crimes of violence under 18 U.S.C. 16(b); TPS felony disqualification. It is also useful to reduce a two-year maximum to a one-year maximum, to qualify for the Petty Offense Exception to CMT inadmissibility. See LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999). Counsel can do a database search of the entire United States Code and of the Code of Federal Regulations for phrases like "not more than two years" and "not more than 2 years." Two-year offenses are rare, but it would be nice to add them to the stock of offenses which we can use in negotiating misdemeanor pleas. For valuable lists of federal misdemeanors, see http://ocdw.com/pdf/102907/Federal%20Misdemeanors.pdf; http://nycrimbar.org/Members/briefs/Misdemeanors.pdf Thanks to Joe Beeler.