United States v. Sanchez-Rueda, 24 F. Supp. 2d 1133 (D. Kan. 1998)
April 8, 1998
Julian SANCHEZ-RUEDA, Defendant.
United States District Court, D. Kansas.
*1134 Michael G. Christensen, Office of U.S. Attorney, Wichita, KS, for Plaintiff.
Cyd K. Gilman, Office of Federal Public Defender, Wichita, KS, for Defendant.
Memorandum and Order
WESLEY E. BROWN, Senior District Judge.
This matter is before the court on the defendant's objections to the Presentence Report. The court ruled orally on the objections at the sentencing hearing of April 6, 1998. This written memorandum will supplement the court's oral ruling.
The defendant has filed two objections to the Presentence Report. First, he objects to the assertion in ¶ 8 that he admitted to an INS agent that he knew he was in the United States illegally. Defendant denies this, and asserts that he explained to the agent that he had his green card at home.
Based on the explanation of the probation officer in ¶ 70 of the Report, which the court finds to be credible, as well as the circumstances surrounding the offense, the court finds it more probable than not that the defendant initially admitted being in the United States illegally before he asserted that he had a green card at home.
Defendant also objects to the statement in ¶ 65 that there are no factors warranting downward departure. He contends that a downward departure is warranted because he reentered the United States in a good faith belief that he could lawfully reenter. He states that he showed his green card at the border and was allowed entry. He also contends that his family circumstances, which include having a handicapped son in the United States who needs extensive care from family members, weigh in favor of a departure.
The court recognizes that it has the authority to depart from the guidelines in certain circumstances. See Koon v. United States, 518 U.S. 81, 92-96, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996) (describing circumstances for departures). After fully considering the issues raised, however, the court finds that the circumstances of this case do not justify granting such a departure.
The defendant's objections to the Presentence Report are DENIED. The Probation Officer in charge of this case shall see that a copy of this order accompanies any copy of the Presentence Report made available to the Bureau of Prisons.