Criminal Defense of Immigrants

(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).