(C)  Downward Departures.  Federal courts may depart upward or downward from the range provided under the sentencing guidelines based on specific considerations outlined in the guidelines and on criteria not addressed in the guidelines.[98]  The defendant’s alienage, family ties, and employment are normally considered irrelevant to sentence under the guidelines.[99]  The court may depart downward based on these factors, and collateral immigration consequences, where the noncitizen defendant demonstrates that those consequences will be extraordinary, not merely that s/he is subject to deportation or other immigration consequences.[100] 

 

                     Several circuits have held the district court may not depart downward in order to take a crime out of the definition of an aggravated felony and protect the noncitizen defendant from immi­gration consequences.[101]

                     The circuits have split on the question whether the defendant’s status as a deportable noncitizen can constitute grounds for a downward departure.[102]  A court may sometimes depart downward in return for the defendant’s waiver of the right to contest deportation, but only if the defendant had some sort of colorable defense to deportation.[103]

 

                     One circuit held it had no power to review a district court’s denial of a downward departure requested in order to avoid subjecting the noncitizen to indefinite immigration detention.[104]

 

[98] U.S.S.G. § 5K2.0 (2001)(allowing departures where the court finds aggravating or mitigating circumstances not adequately taken into consideration by the U.S. Sentencing Commission in formulating the Guidelines that should result in a sentence different than the one described); 18 U.S.C. § 3553(b).

[99] See U.S.S.G., Manual § § 5H1.5, 5H1.6, 5K2.0, cmt. (Nov. 2001); United States v. Guzman, 236 F.3d 830 (7th Cir. 2001) (noncitizen’s immigration status is relevant only to conditions of confinement or other incidents of punishment “sub­stantially more onerous than the framers of the guidelines contemplated”).

[100] E.g., Koon v. United States, 518 U.S. 81, 96, 108 (1996) (a factor generally discouraged may afford a basis for departure when 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.”); United States v. Hernandez, 325 F.3d 811 (7th Cir. 2003); United States v. Tejeda, 146 F.3d 84, 88 (2d Cir. 1998); United States v. Bautista, 258 F.3d 602, 607 (7th Cir. 2001); United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993); Mandarino v. Ashcroft, 290 F.Supp.2d 253 (D. Conn. 2002); United States v. Reyes-Rodriguez, 344 F.3d 1071 (10th Cir. 2003) (son sent every other paycheck to extremely impoverished parents in Mexico, but other siblings lived near their parents, and the support that the appellant would be able to provide after serving his sentence and being deported to Mexico would not be so extraordinary that only he could provide it); United States v. Mejia, 309 F.3d 67 (1st Cir. 2002) (grandparent planned to retain custody of the defendant’s daughter, so family ties were not extraordinary).

[101] United States v. Maung, 320 F.3d 1305, 1308-1309 (11th Cir. 2003) (no decision has been found which “has upheld a downward departure based upon collateral consequences related directly or indirectly to a defendant’s status as an alien”); United States v. Aleskerova, 300 F.3d 286, 300 (2d Cir. 2002); United States v. Hernandez, 325 F.3d 811 (7th Cir. Mar. 28, 2003) (court erred in granting a two-level downward departure under U.S.S.G. § 5K2.0, without which defendant is subject to deportation after conspiracy and counterfeiting convictions); United States v. Reyes-Rodriguez, 344 F.3d 1071 (10th Cir. 2003) (son sent every other paycheck to extremely impoverished parents in Mexico, but other siblings lived near their parents, and the support that the appellant would be able to provide after serving his sentence and being deported to Mexico would not be so extraordinary that only he could provide it); United States v. Mejia, 309 F.3d 67 (1st Cir. 2002) (grandparent planned to retain custody of the defendant’s daughter, so family ties were not extraordinary).

[102] United States v. Olivares, 473 F.3d 1224 (D.C. Cir.  Dec. 19, 2006)(court of appeals affirmed sentence, rejecting claim district court erred in denying a downward departure because the defendant was a noncitizen facing deportation); United States v. Farouil, 124 F.3d 838 (7th Cir. 1997)(status as a deportable noncitizen constitutes lawful ground for downward departure); United States v. Smith, 27 F.3d 649 (D.C. Cir. 1994)(status as deportable noncitizen can, in rare circumstances, support downward departure); United States v. Nnanna, 7 F.3d 420 (5th Cir. 1993)(status as deportable noncitizen not a basis for downward departure); United States v. Veloza, 83 F.3d 380 (11th Cir. 1986).

[103] United States v. Ramirez-Marquez, 372 F.3d 935 (8th Cir. July 8, 2004) (to receive downward departure for waiving deportation rights defendant must demonstrate colorable defense to deportation and that waiver of that defense would substantially assist administration of justice); United States v. Jauregui, 314 F.3d 961 (8th Cir. 2003) (defendant’s waiver of an administrative removal hearing during sentencing for illegal re-entry was a waiver of substantial rights and substantially assisted in the administration of justice, so convicting court may use its discretion in granting motion for downward departure despite government refusal to join the motion).

[104] United States v. Salgado, 250 F.3d 438 (6th Cir. 2001).

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.