                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-22-1998

United States v. Marin Castaneda
Precedential or Non-Precedential:

Docket 97-5252




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Recommended Citation
"United States v. Marin Castaneda" (1998). 1998 Decisions. Paper 21.
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Filed January 22, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5252

UNITED STATES OF AMERICA,

v.

GABRIEL JESUS MARIN-CASTANEDA,

Gabriel Jesus Marin Castaneda,

       Appellant.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 97-cr-00039)

Submitted Under Third Circuit LAR 34.1(a)

November 21, 1997

BEFORE: SCIRICA and LEWIS, Circuit Judges,
and POLLAK,* District Judge.

(Filed January 22, 1998)

       Tonianne J. Bongiovanni

       Office of Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

        Attorney for Appellant
_________________________________________________________________

*Honorable Louis H. Pollak, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
       Kevin McNulty
       Office of United States Attorney
       970 Broad Street
       Room 502
       Newark, NJ 07102

        Attorney for Appellee

OPINION OF THE COURT

LEWIS, Circuit Judge.

Gabriel Jesus Marin-Castaneda, a Colombian national,
appeals the sentence imposed after he pleaded guilty to
importing 1,227 grams of heroin into the United States
from Colombia. Marin-Castaneda argues that the district
court erred when it decided that it did not have the
authority to depart from the applicable sentencing range
based on the following factors: (1) Marin-Castaneda's
willingness not to oppose deportation; (2) his age; and (3)
the deterrent effect of being hospitalized as a result of
attempting to smuggle heroin in his stomach. Wefind no
error committed by the district court. Therefore we will
affirm the district court's judgment of sentence.

I.

In October 1996, Marin-Castaneda arrived at Newark
International Airport aboard a flight from Colombia. During
a customs examination, customs officials found a white
powdery substance in Marin-Castaneda's shoes whichfield-
tested positive for heroin. After the officials arrested him,
Marin-Castaneda informed them that he had also ingested
pellets of heroin. The agents then transported him to the
Bayonne Medical Center. He remained in the hospital for
eleven days, during which time he passed ninety pellets.

Marin-Castaneda pleaded guilty to importing
approximately 1,227 grams of heroin into the United
States, in violation of 21 U.S.C. SS 952(a) and 960(a)(1),
(b)(1). Pursuant to the plea agreement, the base offense
level was reduced from 32 to 27. The district court granted

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an additional two-point downward adjustment, pursuant to
U.S.S.G. S 3B1.2(b), because Marin-Castaneda was a minor
participant in a larger smuggling scheme. Marin-Castaneda
moved for a further two-point reduction, under U.S.S.G.
S 5K2.0, based on his willingness to consent to deportation,
his age and the deterrent effect of his hospitalization due to
ingestion of the pellets. The district court denied this
motion. As a result, the total offense level of 25 and Marin-
Castaneda's criminal history category of I yielded a
sentencing guideline range of 57 to 71 months. The district
court sentenced him to a prison term of 57 months, a
supervised release term of 5 years and a special
assessment of $100. Marin-Castaneda was 67 years old at
the time of sentencing. This appeal followed.

II.

The district court had jurisdiction pursuant to 18 U.S.C.
S 3231. Generally, we lack jurisdiction "to review a refusal
to depart downward `when the district court, knowing it
may do so, nonetheless determines that departure is not
warranted.' " United States v. Sally, 116 F.3d 76, 78 (3d Cir.
1997) (quoting United States v. McQuilkin, 97 F.3d 723, 729
(3d Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 2413
(1997)). We do have jurisdiction, however, when a district
court refuses to depart downward because it believes it
lacks the authority to do so. United States v. Evans, 49
F.3d 109, 111 (3d Cir. 1995). In this case, the district court
ruled that it had no authority to grant Marin-Castaneda's
motion, so we have jurisdiction pursuant to 18 U.S.C.
S 3742 and 28 U.S.C. S 1291.

We review the question of whether a district court had
authority to depart downward under an abuse of discretion
standard. Sally, 116 F.3d at 78. However, a district court's
determination of the scope of its authority is based entirely
in law. For this reason, "[l]ittle turns . . . on whether we
label review of this particular question abuse of discretion
or de novo." Koon v. United States, 116 S. Ct. 2035, 2047
(1996) (citation omitted). "A district court by definition
abuses its discretion when it makes an error of law." Id.
(citation omitted).

                               3
III.

Marin-Castaneda argues that the district court had the
authority to depart downward based on his willingness to
consent to deportation,1 his age and the ordeal caused by
ingestion of the heroin pellets. We will address each of
these factors in turn.

A.

Initially, we must observe that Marin-Castaneda does not
make any claim that his very status as a deportable alien
provided a basis for downward departure. Other courts of
appeal have expressed conflicting opinions as to whether a
district court can depart downward based on an alien's
eligibility for deportation. Compare United States v. Farouil,
124 F.3d 838, 847 (7th Cir. 1997) (holding that a district
court may depart if it finds that status as a deportable alien
results in an "unusual or exceptional hardship in. . .
conditions of confinement"), and United States v. Smith, 27
F.3d 649, 655 (D.C. Cir. 1994) ("[I]f a deportable alien is
assigned to a more drastic prison than otherwise solely
because his escape would have the extra consequence of
defeating his deportation, then the defendant's status as a
deportable alien would have clearly generated increased
severity and thus might be the proper subject of a
departure."), with United States v. Restrepo, 999 F.2d 640,
645-47 (2d Cir. 1993) (concluding that status as a
deportable alien is not an appropriate ground for downward
departure). However, we need not address this issue
because Marin-Castaneda does not argue that his
deportability exacerbates his sentence in any way. Rather,
he claims that the district court should have considered his
decision not to contest deportation as a basis for departure.
He supports this claim by noting that: (1) the Attorney
General has authorized federal prosecutors to recommend
_________________________________________________________________

1. We recognize that Congress has recently acted to replace the term
"deportation" with "removal." See Omnibus Appropriations Act of 1997,
Pub. L. No. 104-208, div. C, S 308, 1996 U.S.C.C.A.N. (110 Stat.) 3009-
620, 3009-621. However, since the term "deportation" appears in most
of the relevant case law, we will use that term in this opinion to avoid
any potential confusion.

                               4
downward departures for aliens who accept deportation
without resistance; and (2) the Attorney General has the
power to deport a convicted alien before completion of a
prison term. We do not find that either of these points
permits a district court to depart downward when an alien
concedes deportation.

In 1995, the Attorney General issued a memorandum to
all federal prosecutors stating a policy favoring the
"deportation of criminal aliens from the United States as
expeditiously as possible." Appendix at 28 (Memorandum
from Office of the Attorney General, April 28, 1995). In
furtherance of this objective, the Attorney General
explained that "prosecutors may agree to recommend a one
or two level downward departure from the applicable
guideline sentencing range in return for the alien's
concession of deportability and agreement to accept a final
order of deportation." Id. at 29. Such departures would be
made pursuant to U.S.S.G. S 5K2.0. See also 18 U.S.C.
S 3553(b) (stating that sentencing court may impose
sentence outside applicable guideline range if "there exists
an aggravating or mitigating circumstance of a kind, or to
a degree, not adequately taken into consideration by the
Sentencing Commission . . ."). Marin-Castaneda contends
that, since the prosecution had the authority to recommend
downward departure based on his willingness to be
deported, the district court erred in ruling that it could not
grant the two-point adjustment.

This argument misses a fundamental point. The
prosecution did not recommend downward departure on
this basis, but opposed it. The United States Attorney for
the District of New Jersey did not have to accept Marin-
Castaneda's offer to waive his right to a deportation
hearing, and chose to reject it. Since Marin-Castaneda is
not a resident alien, but a Colombian national who, for all
that appears, set foot on United States soil for the sole
purpose of importing heroin, it seems unlikely that he
would have had any remotely colorable basis for opposing
deportation. At all events, Marin-Castaneda did not at
sentencing (and has not here) put forth an arguable
objection to deportation that he was willing to waive in
exchange for a downward departure. Thus, his waiver of his

                               5
right to a deportation hearing provides no real
administrative advantage. Although we have never
addressed this precise issue, we receive guidance from
other courts of appeal. In United States v. Clase-Espinal,
115 F.3d 1054, 1055 (1st Cir. 1997), a district court
refused to depart downward in sentencing a defendant from
the Dominican Republic, even though he consented to
deportation, because he had no plausible basis to contest
deportation. In affirming the district court, the court of
appeals for the First Circuit noted that section 5K2.0 of the
Sentencing Guidelines permits a downward departure only
when "the proffered ground makes the case sufficiently
atypical to remove it from the `heartland.' " Id. at 1057
(quoting Koon, 116 S. Ct. at 2045). With this requirement
in mind, the Clase-Espinal court reasoned that "an alien
criminal defendant with no plausible basis for contesting
deportation . . . does not meet the atypicality requirement
for a section 5K2.0 departure simply by relying upon
whatever administrative convenience presumably may
result from a stipulated deportation." 115 F.3d at 1058
(citation omitted). The court based this conclusion on the
fact that "only about 3% of all apprehended aliens who are
expelled ever undergo a deportation hearing." Id. at 1058
n.4 (citing Immigration and Naturalization Service, 1993
Statistical Yearbook 158 tbl. 59 (1994)).

Similarly, in United States v. Flores-Uribe, 106 F.3d 1485,
1486 (9th Cir. 1997), a district court denied a defendant's
request for a downward departure based on his consent to
deportation to Mexico. The district court determined that it
had neither the authority to depart downward nor to issue
a deportation order absent a request from the United States
Attorney. Id. at 1486. The court of appeals for the Ninth
Circuit affirmed the district court by holding that (1) under
8 U.S.C. S 1252a(d)(1),2 a district court can only order
deportation, as an exception to the Executive Branch's
plenary power to deport aliens, at the request of the United
States Attorney and (2) absent such a request, the
defendant's stipulation to deportation had "no practical or
legal effect since the district court lacked jurisdiction to
enter a deportation order." Id. at 1487-88.
_________________________________________________________________

2. This provision has since been redesignated as 8 U.S.C. S 1252a(c)(1).

                               6
We find the reasoning of Clase-Espinal and Flores-Uribe
compelling with respect to two points: (1) a defendant
without a nonfrivolous defense to deportation presents no
basis for downward departure under section 5K2.0 by
simply consenting to deportation and (2) in light of the
judiciary's limited power with regard to deportation, a
district court cannot depart downward on this basis
without a request from the United States Attorney. Thus,
we conclude that the district court did not err in refusing
to depart downward. Such departure was beyond its
authority. We note that, even if the prosecution had
requested downward departure on this basis, the district
court still would have had the discretion not to depart
downward. See United States v. Casiano, 113 F.3d 420, 429
(3d Cir. 1997) ("[I]t is the district court's decision, not the
prosecutor's, whether to depart and to what extent.");
Clase-Espinal, 115 F.3d at 1056 (affirming district court's
decision not to depart despite fact that United States
Attorney recommended two-level downward departure
based on defendant's consent to deportation). The United
States Attorney's opposition only militates against
downward departure in this case. The recommendation of
the United States Attorney, while it may not be sufficient to
convince a district court to depart downward on this basis,
is at least necessary for such a decision.

Marin-Castaneda makes the supplemental argument that
the district court had authority to depart downward
because the Attorney General may deport an alien before
completion of a prison term. The Attorney General has
authority to

       remove an alien . . . before the alien has completed a
       sentence of imprisonment . . . if the Attorney General
       determines that (I) the alien is confined pursuant to a
       final conviction for a nonviolent offense . . . and (II) the
       removal of the alien is appropriate and in the best
       interest of the United States.

8 U.S.C. S 1231(a)(4)(B).3 Marin-Castaneda's reliance on
_________________________________________________________________

3. Both parties use the citation "8 U.S.C.S 1252(h)(2)(A)" but this
provision is presently codified at 8 U.S.C. S 1231(a)(4)(B). See Omnibus
Appropriations Act of 1997, Pub. L. No. 104-208, div. C, SS 305-06, 1996
U.S.C.C.A.N. (110 Stat.) 3009-598, 3009-599, 3009-607 (transposing
language from 8 U.S.C. S 1252 to 8 U.S.C. S 1231).

                               7
this provision is misplaced for two reasons. First, the
provision only offers a post-sentence method by which an
alien may be deported before fully serving a term of
imprisonment. The provision makes no mention of
downward departure in imposing the sentence itself.
Second, the statute vests the Attorney General, not the
district court, with the authority to curtail a prison
sentence for the purpose of deportation. As discussed
earlier, a district court cannot sua sponte issue a
deportation order without a request from the United States
Attorney. 8 U.S.C. S 1252a(c)(1). Thus, the district court
could not depart downward pursuant to section
1231(a)(4)(B) because the statute does nothing to expand
its rather limited powers on issues of deportation. In sum,
Marin-Castaneda invokes section 1231(a)(4)(B) at the wrong
juncture and directs his argument at the wrong branch of
government. In fact, Marin-Castaneda does not even have
standing to enforce this statute. See Thye v. United States,
109 F.3d 127, 129 (2d Cir. 1997) (holding that Attorney
General's authority to deport "creates no private right of
action" for a criminal alien because Attorney General must
act in best interest of United States, not the criminal alien).
The Attorney General may still exercise her power to deport
Marin-Castaneda before he has completed his sentence, but
this possibility created no ground for downward departure
by the district court when it was imposing the sentence.
Consequently, the district court did not err in concluding
that it could not depart downward pursuant to 8 U.S.C.
S 1231(a)(4)(B).

B.

Marin-Castaneda argues that his age and the ordeal of
being hospitalized also served as bases for downward
departure. We disagree. First, the Sentencing Commission
has instructed that

       [a]ge . . . is not ordinarily relevant in determining
       whether a sentence should be outside the applicable
       guideline range. Age may be a reason to impose a
       sentence below the applicable guideline range when the
       defendant is elderly and infirm and where a form of

                               8
       punishment such as home confinement might be
       equally efficient as and less costly than incarceration.

U.S.S.G. S 5H1.1, policy statement. We have interpreted
this language as "foreclos[ing] departures based on age in
all but the most extraordinary cases." Sally, 116 F.3d at 78;
see also United States v. Monaco, 23 F.3d 793, 798 n.7 (3d
Cir. 1994) (concluding that defendant's age of 57 offered no
basis for downward departure). Marin-Castaneda does not
assert any extraordinary condition other than the fact that
he was 67 years old at the time of sentencing. He does not
seem to suffer from any unusual impairments for a man his
age; certainly nothing suggesting that home confinement
would be as effective as incarceration. In fact, he had never
been hospitalized before his stay at the Bayonne Medical
Center. Appendix at 98 (referring to Presentence
Investigation Report P 37). Absent some extraordinary
infirmity, we cannot conclude that the bare fact that Marin-
Castaneda was 67 years old would have justified a
downward departure by the district court. See United States
v. Goff, 20 F.3d 918, 921 (8th Cir. 1994) (holding that
section 5H1.1 does not permit downward departure for 67-
year-old defendant in good health); United States v. Tucker,
986 F.2d 278, 280 (8th Cir. 1994) (same).

Second, with regard to the deterrent effect of Marin-
Castaneda's physical ordeal, he has indicated that he was
aware of the health risks involved in ingesting heroin prior
to his trip. Addendum to Presentence Investigation Report
at 14. Thus, the manifest danger in swallowing ninety
pellets of heroin did not deter Marin-Castaneda from
embarking on this endeavor in the first place. Furthermore,
the physical trauma he experienced, which is inherent in
smuggling drugs in this manner, could hardly be
considered an unusual characteristic or circumstance
distinguishing this case "from the `heartland' cases covered
by the guidelines." U.S.S.G. S 5K2.0, policy statement; see
also Koon, 116 S. Ct. at 2046 ("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 sum, neither Marin-Castaneda's age nor his
physical ordeal presented grounds for a downward
departure.

                               9
IV.

Before the district court, Marin-Castaneda argued that
the three proposed bases for downward departure --
consent to deportation, age and physical trauma -- warrant
downward departure collectively, even if they may not
individually. We find the three bases to be no more
compelling collectively than they are individually. Viewed
together or separately, these factors do not justify
downward departure.

Since the district court did not err in determining the
scope of its authority to depart downward, we will affirm its
judgment of sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                10
