Unpublished Disposition, 931 F.2d 898 (9th Cir. 1988)

MEMORANDUM^* 

Ricardo Gastelum-Almeida ("Gastelum") is a Mexican citizen. On April 24, 1988, he entered the United States at Calexico, California, using a non-immigrant visa that precluded him from traveling more than 25 miles from the border. On April 26, 1988, he was arrested near Salton City, California, nearly 55 miles north of the border, and charged under 18 U.S.C. § 911 (False Claim of Citizenship); 18 U.S.C. §§ 1111, 1114, (Assault on a Federal Officer); 8 U.S.C. § 1326 (Re-entry after Deportation); court's resolution of the issue de novo. United States v. Villa-Fabela, 882 F.2d 434, 437 (9th Cir. 1989).

In Villa-Fabela, we stated " [t]here are three kinds of relief from deportation: suspension of deportation under 8 U.S.C. § 1254(a) (1); voluntary departure under 8 U.S.C. § 1254(e); and record of admission for permanent residence under 8 U.S.C. § 1259." Id. at 439. We held that where the immigration judge was statutorily precluded from granting any one of these forms of relief any violation of the INS regulations during the deportation hearing constituted harmless error. Id. at 439-40.

As was the alien in Villa-Fabela, Gastelum was statutorily ineligible for relief from deportation and for voluntary departure because of previous criminal convictions which precluded him from meeting the requirement of "good moral character." The Attorney General has discretion to suspend deportation only for those persons who can demonstrate "good moral character" over the past seven years. 8 U.S.C. § 1254(a) (1). To be eligible for a discretionary voluntary departure, the alien must be able to show "good moral character" for at least five years. 8 U.S.C. § 1254(e). As we explained in Villa-Fabela, a person cannot be found to have "good moral character" if, during the relevant period, he has been "confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more." 882 F.2d at 439 (citing 8 U.S.C. § 1101(f) (7)).

Although Gastelum has a long criminal record, we need look to only one of his prior convictions to determine that he did not meet the "good moral character" requirement for either section 1254(a) (1) or section 1254(e). Gastelum served a sentence of 18 months in prison beginning on June 3, 1985. Thus, he did not have "good moral character" for the five years preceding his July 29, 1988 deportation hearing, as required by those sections.

Gastelum also was statutorily ineligible for relief under section 1259 because he had been previously convicted of "a crime involving moral turpitude." Villa-Fabela, 882 F.2d at 440. Accordingly, no relief from deportation was available to him. Thus, we need not consider the merits of the alleged due process violations. His collateral attack on the deportation hearing fails.

SENTENCE

Gastelum first argues that the district court erred by increasing his base offense level from four to eight based on the grounds that he "was deported after sustaining a conviction for a felony, other than a felony involving violation of the immigration laws." U.S.S.G. Sec. 2L1.2(b) (1) (1990). This enhancement was added to the Guidelines in 1989, and therefore was not in effect at the time of Gastelum's arrest. Consequently, he contends, it should not have been applied to him.

We reject this argument because it mischaracterizes the district court's reason for departure. The district court did not apply section 2L1.2(b) (1) as such. Rather, the court determined that the fact that Gastelum had previously been deported for a non-immigration felony was, under the then-applicable version of the Guidelines, "an aggravating ... circumstance ... not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines." U.S.S.G. Sec. 5K2.0.

The district court was clearly justified in its conclusion that this circumstance both justified a departure and was not taken into account by the Sentencing Commission. Section 1326 of Title 8 was amended in 1988 (before Gastelum's crime) so as to increase the statutory maximum penalty when a defendant has been previously deported pursuant to a felony conviction. This reflects a Congressional determination that prior non-immigration felony deportation justifies a sentence enhancement. Consequently, the district judge was entitled to treat this as an aggravating factor. Since at the time Gastelum committed the offense the 1988 amendment to the statute was not yet reflected by the Guidelines, it follows that at that time the Commission had not taken this circumstance into consideration.

Gastelum next alleges that the district court wrongly considered prior convictions excluded by the Guidelines in making its decision to depart upward from criminal history category V to category VI. We consider this claim de novo. United States v. Cota-Guerrero, 907 F.2d 87, 89 (9th Cir. 1990). As we stated in Cota-Guerrero, prior convictions that may not be considered in the criminal history computation may nonetheless be considered under section 4A1.3 "if they were evidence of conduct similar to that involved in the current offense." Id.

Section 4A1.3 states that " [i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes, the court may consider imposing a sentence departing from the otherwise applicable guideline range." Here, the district court stated that its basis for the upward departure in the criminal history category was Gastelum's "criminal conduct." The court also mentioned his "substantial criminal history", but gave no specific examples of which convictions were considered and why they were considered.

The government argues that the presentence report, incorporated by reference in the judge's sentencing, was sufficient to make the showing of specificity. Although the report argued that an upward departure in the history category was warranted, it too made no specific references to the particular prior convictions that were considered. Thus, the district court failed to "state its basis for the degree of its departure with 'reference [to] the guideline range for a defendant with a higher ... criminal history category' ", and "justify the extent of its departure by analogy to the guideline sentences of defendants in a higher criminal history category." United States v. Rodriguez-Castro, 908 F.2d 438, 442-43 (9th Cir. 1990). Consequently, we must vacate the sentence.

CONVICTION AFFIRMED, SENTENCE VACATED; REMANDED FOR RESENTENCING.