United States of America, Appellant, v. Roberto Duran Jauregui, Appellee, 314 F.3d 961 (8th Cir. 2003)

Roberto Duran Jauregui was born in Mexico in 1950. In 1975, he entered the United States and has remained here since, residing in Illinois and California, as a lawful permanent resident of the United States. On August 29, 2001, a jury convicted Duran of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841. Duran moved for several departures, including a five-level departure based on his waiver of the right, as a resident alien, to an administrative deportation hearing. The district court¹  granted Duran a four-level downward departure on that ground. The court then sentenced him to 70 months in prison. The government appeals this four-level departure arguing that a permanent resident alien's waiver of administrative deportation proceedings should not support a downward departure. We affirm the district court's downward departure.

We review a district court's decision to depart from the guidelines for an abuse of discretion. See Koon v. United States, 518 U.S. 81, 91, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996).

Duran correctly claims that, as a lawful permanent resident, he is entitled to the due process protections of the Fifth Amendment while he is in the United States and before an order of deportation is entered. Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S. Ct. 472, 97 L. Ed. 576 (1953). In the context of an administrative deportation hearing, those protections include the right to demand the filing of written notice, obtain legal representation, examine the evidence against him, present evidence, cross examine the government's witnesses, appeal the immigration judge's decision to the Board of Immigration Appeals, and challenge the constitutionality of removal procedures and standards. 8 U.S.C. § 1229(a); see also United States v. Sentamu, 212 F.3d 127, 131 (2d Cir. 2000) (detailing deportation hearing procedure). A permanent resident is also exempt from the expedited removal proceedings applicable to other aliens convicted of aggravated felonies. 8 U.S.C. § 1228(b).

We have held that " [i]n this circuit a sentencing court may grant a downward departure under U.S.S.G. § 5K2.0 for a defendant's willingness to waive resistance to deportation, see United States v. Cruz-Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996), but the decision to depart or not is soundly within the district court's discretion. See United States v. Hernandez-Reyes, 114 F.3d 800, 803 (8th Cir. 1997)." United States v. Sera, 267 F.3d 872, 874 (8th Cir. 2001). The district court relied upon this pronouncement in exercising its discretion to depart.² 

The government contends that because it did not join in a motion for a departure based on the defendant's consent to voluntary deportation, as was the case in Cruz-Ochoa, the court did not have the authority to depart. See Cruz-Ochoa, 85 F.3d at 325-26 (remanding for court to consider a two-level downward departure based on the parties' joint motion citing defendant's waiver and consent to administrative deportation). However, this court has previously rejected the argument that both the government and the defendant must join in the motion for departure. See United States v. Garlich, 951 F.2d 161, 163 (8th Cir. 1991) ("A government motion is not a prerequisite to a departure based on unusual circumstances."). Moreover, we have stated before that the district court has "the authority to depart downward on the basis that [the defendant has] consented to an administrative deportation." Hernandez-Reyes, 114 F.3d at 802 (citation omitted).³  We conclude a waiver of the administrative deportation proceeding due a resident alien is a sufficient basis for departure, notwithstanding the government's decision not to join the motion. Duran, as a resident alien, gave up substantial rights in waiving an administrative deportation hearing, and it was within the sound discretion of the district court to conclude that in doing so he has substantially assisted in the administration of justice.

It is unclear as to whether the government is also appealing the extent of the departure. In any event, we conclude that the district court did not abuse its discretion. A four-level departure is certainly at the outer limits of the extent of a departure under these circumstances. However, we cannot conclude that the government has shown an abuse of the district court's discretion in determining the extent of the departure.

Accordingly, we affirm the sentence imposed by the district court.