IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA )

) CRIMINAL ACTION

v. ) NO. xxxxxxxxxx

)

xxxxxxxxxxxxx )

______________________________________)

MOTION FOR DOWNWARD DEPARTURE

COMES NOW DEFENDANT, xxxxxxxxxxxxxx, by and through undersigned counsel, and hereby requests that this Court grant him a downward departure of the sentencing range otherwise applicable pursuant to the authority provided the Court under 18 U.S.C. §3553(b) and §5K2.0 of the Sentencing Guidelines.

Mr. xxxxxxxxxxxxx plead guilty to unlawfully being found in the United States in violation of 8 U.S.C. §1326. The Presentence Report calculates Mr. xxxxxxxxxxxxx's adjusted offense level at 21 and criminal history at II, giving him a Guideline range of 41 to 51 months. In arriving at this figure, the probation officer, pursuant to U.S.S.G. §2L1.2(b)(2), increased Mr. xxxxxxxxxxxxx's base offense level by 16 points because he was previously deported after a conviction for an aggravated felony.

Defendant will argue that an additional two-level downward departure is justified because he will stipulate that he agrees to deportation and will execute all the forms necessary for deportation. Thus, Mr. xxxxxxxxxxxxx may be facing a final adjusted offense level of 19, with a Guideline range of 33 to 41 months.

ARGUMENT

In 1990 Mr. xxxxxxxxxxxxx was convicted of delivery of controlled substance and possession with intent to distribute of cocaine in King County, Washington. The probation officer considers this prior offense an "aggravated felony" as defined in Applic. Note 7 to U.S.S.G. §2L1.2. Accordingly, in preparing the Presentence Report, the probation officer enhanced Mr. xxxxxxxxxxxxx's offense level by 16 points. A 16-point increase of Mr. xxxxxxxxxxxxx's offense level over penalizes his criminal past and results in an inequitable sentence. As will be shown below, a downward departure on this ground is appropriate in this case.

I. This Court has the authority to order a downward departure from §2L1.2(b)(2).

This Court has the statutory authority to depart from the Guidelines in those cases in which the Court finds "an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission." 18 U.S.C. §3553(b); U.S.S.G. §5K2.0. Two appellate circuits have recently considered the question of whether a court has authority to depart downward from the 16-point enhancement under U.S.S.G. §2L1.2(b)(2) when the district court finds that the 16-point enhancement over-penalizes a defendant. In United States v. Cuevas-Gomez, 61 F.3d 749 (9th Cir. 1995), the Ninth Circuit held that a district court had the authority to depart downward from the 16-point enhancement contained in U.S.S.G. §2L1.2(b)(2). Similarly, the Second Circuit in United States v. Hinds, affirmed a district court's granting of a downward departure from U.S.S.G.'s §2L1.2 16-point enhancement. United States v. Hinds, 992 F.2d 321 (2nd Cir. 1992). In that case the district court held that the mechanical application of U.S.S.G. §2L1.2 substantially over-represented the nature of the defendant's prior convictions and a downward departure was appropriate. United States v. Hinds, 803 F.Supp. 675, 677 (W.D.N.Y. 1992).

II. A 16-point enhancement of Mr. xxxxxxxxxxxxx's offense level overstates the seriousness of his offense.

Under U.S.S.G. §2L1.2(b)(2), a 16-level increase in the base offense level is appropriate if the defendant previously was deported after a conviction for an aggravated felony. Application Note 7 to U.S.S.G. §201.2 defines an aggravated felony as: murder; any illicit trafficking in any controlled substance (as defined in 21 U.S.C. §802), including any drug trafficking crime as defined in 18 U.S.C. §924(c)(2); any illicit trafficking in any firearms or destructive devices as defined in 18 U.S.C. §921; any offense described in 18 U.S.C. §1956 (relating to laundering of monetary instruments); any crime of violence (as defined in 18 U.S.C. §16, not including a purely political offense) for which the term of imprisonment imposed (regardless of any suspension of such imprisonment) is at least five years; or any attempt or conspiracy to commit any such act.

This 16-point enhancement became effective after the 1991 Guideline Amendments. Appendix C to the November 1, 1991 Guideline Amendments contains the reasoning behind the 16-point enhancement. As the Sentencing Commission explained:

This amendment adds a specific offense characteristic providing an increase of 16 levels above the base offense level under §2L1.2 for defendants who reenter the United States after having been deported subsequent to a conviction for an aggravated felony. Previously, such cases were addressed by a recommendation for consideration of an upward departure.... The Commission has determined that these increased offense levels are appropriate to reflect the serious nature of these offenses. In addition, this amendment revises the Commentary to §2L1.2 to make the statutory reference more precise, and to clarify the operation of the guidelines in respect to prior criminal history. The effective date of this amendment is November 1, 1991.

(Emphasis in original) Amendment 375, U.S.S.G. Appendix C, November 1, 1991.

The effect of Amendment 375 is to lump together very different aggravated felonies and yet equally penalize defendants convicted of very different offenses. Table A below illustrates how various "aggravated felonies" are treated by the Guidelines outside of U.S.S.G. §2L1.2.

Table A

As the chart illustrates, numerous offenses fall into the definition of "aggravated felony." The degree of seriousness varies wildly among the offenses. The 16-point enhancement, however, fails to take into consideration the differences in severity between the offenses. Indeed, the effect of the 16-point enhancement is to penalize equally defendants that have committed very different offenses. The mechanical application of U.S.S.G. §2L1.2(b)(2) results in unfair sentencing. As one court has noted:

The 'aggravated felony' definition, 8 U.S.C. §1101(a)(43), was a small part of a substantial reenactment of the Immigration laws. In the amendments, Congress addressed many problems facing the Immigration authorities. This section was only a small part of this substantial reenactment. It was the purpose of Congress to make sure that certain individuals described in this section would not be considered for admission or be permitted to remain in the United States under certain circumstances. Congress, if it desires, has the authority to provide that certain individuals should not be permitted to enter the United States if previously convicted of certain felonies. But the Congressional enactment at issue is civil in nature, and it is inappropriate to use it as part of a sentencing procedure. To apply this section to a sentencing problem will result in the inequitable treatment of offenders previously convicted of very different crimes.

In the enactment of the Immigration laws, Congress was justified in lumping the very different categories of the "aggravated felony" together. However, it is inappropriate and it makes for an unfair sentence to apply the Commission's scheme in the same manner to a person convicted of murder, which carries a possible life sentence, to one convicted of money-laundering.

United States v. Hind, 803 F.Supp. at 677.

Other courts around the country have similarly departed from U.S.S.G. §2L1.2(b)(2). In United States v. Portillo-Iglesias, No. 92-CR-194-A (W.D.N.Y. Buffalo 2/3/93) the defendant received a downward departure from 46-57 months to 8 months, in part, because the aggravated felony adjustment for a small marijuana sale several years earlier over-represented the seriousness of the defendant's prior record. Similarly, in United States v. Reid, No. S-92-0345 (D.MD. 33193) the court granted the defendant's motion for downward departure because the 16-level upward adjustment for having an aggravated felony over-represented the defendant's prior criminal history and because of harsher conditions of incarceration for deportable aliens. A copy of the Judgment and Commitment Order for Reid is attached as Exhibit "B". In our District, in the case of United States v. Trott, 194 CR 338, The Honorable Judge Forrester granted a downward departure after finding that a 16-point increase of Mr. Trott's base offense level due to his prior conviction for possession of marijuana with intent to distribute overstated Mr. Trott's criminal history.

This Court should find that Mr. xxxxxxxxxxxxx is entitled to a downward departure. As the Presentence Report indicates, Mr. xxxxxxxxxxxxx was convicted of possession with intent to distribute cocaine and received a 36 month sentence. As shown by the table on page 4, under the Guidelines, Mr. xxxxxxxxxxxxx would have been subject to a 15-21 month term of incarceration if he was convicted at the federal level. As it stands, he was convicted under Washington law. Because Mr. xxxxxxxxxxxxx was convicted of delivery of a small amount, his sentence had a statutory maximum of 10 years and his sentencing range was 36-48 months.

Mr. xxxxxxxxxxxxx's case is atypical. Even though his prior conviction for attempted possession with intent to distribute falls within the definition of "aggravated felony," his conviction is less serious than many of the convictions that fall into the "aggravated felony" definition as well. See table on page 4. A 16-point enhancement seriously over-represents his criminal past. Clearly, Mr. xxxxxxxxxxxxx is not a major drug dealer involved in large scale cocaine or heroin distribution. To treat him as the equivalent of one would be illogical, inappropriate and unjust. Accordingly, he asks that the Court grant his request for a motion for downward departure and sentence him at a level that appropriately reflects the seriousness of Mr. xxxxxxxxxxxxx's prior criminal conviction.

Respectfully submitted this _______ day of October, 1997.

______________________________

RISE WEATHERSBY

ATTORNEY FOR

ESTEBAN xxxxxxxxxxxxx

STATE BAR NO. 743114

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

CERTIFICATE OF SERVICE

This is to certify that I have this day served a copy of the foregoing Motion for Downward Departure upon:

David Leta, Esq.

Assistant United States Attorney

1800 Richard B. Russell Building

75 Spring Street, S.W.

Atlanta, Georgia 30335

by hand delivering a copy of the same

.

Dated: This ____ day of October, 1997.

______________________________

RISE WEATHERSBY

ATTORNEY FOR

ESTEBAN xxxxxxxxxxxxx

STATE BAR NO. 743114

Federal Defender Program, Inc.

Suite 3512, 101 Marietta Tower

Atlanta, Georgia 30303

(404) 688-7530

X:\APPS\MOTIONS\ALASKA\SENTENC\1326B.WPD

1. Assumes Criminal History Category I and no U.S.S.G. Chapter 3 Adjustments.