United States of America, Plaintiff-appellee, v. Efrain Martinez-ramos, Aka Oscar Ocampo Melendez, Defendant-appellant, 184 F.3d 1055 (9th Cir. 1999)

Efrain Martinez-Ramos appeals the sentence imposed fol- lowing his guilty plea to being an illegal alien found in the United States, in violation of 8 U.S.C. S 1326, because the district court felt it had no discretion to depart downward on the ground that there was unwarranted disparity in plea bar- gaining practices among the United States Attorney's Offices in the federal districts of California, or on the ground that his sentence would be more severe than most because his alien status renders him ineligible for minimum security incarcera- tion and community confinement. We must reverse and remand with respect to the first ground, because in the mean- time we held in United States v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir. 1999), that sentencing disparity for a S 1326 violation which arises from different plea-bargaining policies in the Central and Southern Districts of California can be a valid basis for downward departure. However, Martinez-Ramos's status as a deportable alien cannot be a ground for downward departure because deportable alien sta- tus is an element of the crime that was necessarily taken into account by the Sentencing Commission in crafting the offense level for a S 1326 violation. We therefore affirm as to that ground.

* Martinez-Ramos pled guilty to a first superseding informa- tion charging him with one count of being an illegal alien in the United States following deportation without permission, in violation of 8 U.S.C. S 1326.¹  The Presentence Report ("PSR") calculated a total adjusted offense level of 24 (a base offense level of 8, plus a 16-level enhancement because Martinez-Ramos had previously been deported after conviction for an aggravated felony, under U.S.S.G. S 2L1.2² . The PSR also recommendeda 3-level downward departure for acceptance of responsibility and figured Martinez-Ramos's criminal history at level VI, resulting in an applicable guide- lines range of 77 to 96 months.

Martinez-Ramos sought departure on three grounds, only two of which concern us on appeal. The first the district court granted, finding that Martinez-Ramos's criminal history was over represented due to the minor nature of his previous aggravated felony convictions. But the court refused to depart on either of the other two grounds -- that there is a disparity in sentencing between federal districts, or that Martinez- Ramos's status as a deportable alien subjected him to a harsher sentence than citizens and non-deportable aliens because he was ineligible to serve the final portion of his sentence somewhere other than prison -- as it felt that it lacked discre- tion to do so.

The court then found that for an adjusted offense level of 21 with criminal history III the applicable guidelines range was 46 to 57 months, and sentenced Martinez-Ramos to 46 months plus a term of three years supervised release. Martinez-Ramos timely appealed.

II

By now it is settled that a district court's discretionary refusal to depart from the Sentencing Guidelines is not reviewable on appeal. See United States v. Tucker, 133 F.3d 1208, 1214, 1219 (9th Cir. 1998). If the district court indicates, however, that it does not have discretion under the guidelines to depart, we review that determination de novo. See id.

III

Although it was an open issue when the district court ruled and the briefs on appeal were filed, we have since held that a district court has discretion to depart downward based upon an asserted disparity in plea bargaining practices among the United States Attorney's Offices in the federal districts of California. See Banuelos-Rodriguez, 173 F.3d at 742. Banuelos-Rodriquez therefore controls, and we must reverse and remand for resentencing on this point.

IV

Relying on our previous recognition of a district court's authority in non-S 1326 cases to consider a downward departure on the ground of deportable alien status, see United States v. Charry Cubillos, 91 F.3d 1342 (9th Cir. 1996); United States v. Davoudi, 172 F.3d 1130 (9th Cir. 1999), Martinez-Ramos argues that the court should also have discretion to depart downward on account of deportable status in his case. In both Charry Cubillos and Davoudi the defendant sought downward departure because his status as a deportable alien made him ineligible for community or home confinement, and minimum security imprisonment. In each case we acknowledged that the district court has legal discretion to depart downward because of the defendant's status as a deportable alien. But Charry Cubillos and Davoudi are significantly different from this case, as both involved offenses in which the defendant's status as an alien was irrelevant, whereas Martinez-Ramos was convicted of a S 1326 offense in which the defendant's status as an illegal alien is part and parcel of the crime. Charry Cubillos was convicted of posses- sion with intent to distribute heroin in violation of 21 U.S.C. S 841(a) (1), and Davoudi for making false statements to federally-insured banks in violation of 18 U.S.C.S 1014. In neither case did the crime or the guidelines for the crime have anything to do with the defendant's status as a deportable alien.

As we explained in Charry Cubillos, " [a]fter Koon, federal courts can no longer categorically proscribe a basis for departure--unless the Commission has proscribed, as a categorical matter, consideration of the factor." Charry Cubillos, 91 F.3d at 1344 (discussing Koon v. United States, 518 U.S. 81, 109 (1996)). Of course this could not be said of the guide- lines for drug and false statement offenses.

However, in this case, the crime itself assumes an alien who is deportable, and sentencing necessarily involves a defendant who is a deportable alien. A defendant cannot be guilty of violating S 1326(a) unless he has previously "been denied admission, excluded, deported, or removed " from the United States, see 8 U.S.C. S 1326(a) (1), yet this is the very status that Martinez-Ramos advances as grounds for a down- ward departure. All defendants found guilty of violating S 1326(a) will be deportable aliens, subject to the same sentencing constraints that apply to all other defendants found guilty of violating S 1326(a). Thus, unlike in Charry Cubillos, there is not even an arguable "need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. S 3553(a) (6). Likewise, the Sentencing Commission by definition must have factored deportable alien status into U.S.S.G. S 2L1.2, the guideline for a S 1326(a) offense, for the defendant's status as a deportable alien found in the United States without permission is the very thing being punished.

Accordingly we join the Sixth and Seventh Circuits in holding that deportable status may not be a ground for down- ward departure from the applicable guideline range for aliens who are deportable. See United States v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997), cert. denied, _______ U.S. _______, 118 S. Ct. 720 (1998); United States v. Ebolum, 72 F.3d 35 (6th Cir. 1995).³  In Ebolum as here, the defendant was found in the United States in violation of S 1326 and was sentenced under U.S.S.G. S 2L1.2. He also requested a downward departure based on his status as a deportable alien. The court reasoned:

Absent any credible argument or evidence to the contrary, we must assume that the Sentencing Com- mission took deportable alien status into account when formulating a guideline that applies almost invariably to crimes, such as 8 U.S.C. S 1326, that may be committed only by aliens whose conduct makes them deportable. Therefore, the district court's determination that it could not depart down- ward on the basis of deportable alien status in this case was correct.

Ebolum, 72 F.3d at 38. Similarly in Gonzalez-Portillo, decided after Koon, the defendants were convicted of violating S 1326 and argued that their status as deportable aliens would lead to harsher conditions of confinement because they were disqualified from serving any portion of their sentences in minimum security institutions, half-way houses, community correction centers, or home confinement. Following Ebolum, the court noted that " [b]ecause deportable alien sta- tus is an inherent element of the crimes to which the guideline applies, this factor was clearly `taken into consideration by the Sentencing Commission in formulating the guideline [ ]' (18 U.S.C. S 3553(b)) and was accounted for in the offense levels it established." Gonzalez-Portillo, 121 F.3d at 1124-25.

We agree that "deportability was certainly accounted for" in U.S.S.G. S 2L1.2, id. at 1125, since all crimes covered by itinvolve an alien being found illegally in the United States, who is for that reason deportable. That being so, departure on account of deportable status for aliens convicted of S 1326 offenses fits squarely within Koon's perimeters and is proscribed. The district court did not err in believing that it lacked discretion to depart downward on the basis of Martinez-Ramos's status as a deportable alien.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.