D. This Court Should Depart Downward Due To Mr. *Is Extraordinary Family Circumstances

While family circumstances are not "ordinarily" relevant to guide the exercise of the sentencing court's discretion, see U.S.S.G. §"5Hl.6, the converse is also true: in unusual or exceptional cases, family responsibilities may properly be considered. See United States v. Mondello, 927 F.2d 1463, 1470 (9th Cir. 1991). In addition to the Ninth Circuit, several other Courts of Appeals have affirmed the authority to departure on this ground and none have held to the contrary; it is uncontroverted that this Court has authority to grant the requested departure. See, e.g., United States v. Candy, 38 F.3d 893, 903-08 (7th Cir. 1994) (remanding to determine whether the fact that defendant had three children who were exemplary students and family might suffer rendered the situation extraordinary); United States v. Haversat, 22 F.3d 790, 796-98 (8th Cir. 1994) (defendant provided care to wife with severe psychiatric problems); United States v. Sclamo, 997 F.2d 970, 973-74 (lst Cir. 1993) (same); United States v. Gaskill, 991 F.2d 82, 85-86 (3d Cir. 1993); United States v. Johnson, 964 F.2d 124, 129-30 (2d Cir. 1992) (parental responsibilities); United States v. Alba, 933 F.2d 1117, 1122 (2d Cir. 1991) (same); United States v.Pena, 930 F.2d 1486, 1494-95 (10th Cir. 1991) (same). The Supreme Court has generally confirmed that departure for factors not ordinarily relevant is permissible in the unusual or exceptional case. Koon v. United States, U.S. 116 S.Ct. 2035, 2045-47 (1996).

The common theme that has been established in the numerous cases authorizing downward departures for family circumstances is that "the courts have required a showing that the period of incarceration set by the Guidelines would have an effect on the family or family members beyond the disruption to family and parental relationships that would be present in the usual case." Canoy, 38 F.3d at 907 (citations omitted). Several courts have applied this analysis and found departure was appropriate in cases in which the family's suffering is less profound than -- or at most equivalent to -- that endured by Mr. *'s family in this case.

In United States v. Rivera, 994 F.2d 942 (Ist Cir. 1993), then Chief Circuit Judge Breyer approved a downward departure in a drug case for a mother with three small children, who received welfare, whose only local family member also received welfare, and who committed the offense to purchase Christmas presents. Id. at 953-54. Here, while Mr. * is not a single parent, he is his family's sole source of support. Moreover, he and his family will have to live in Mexico--where there is no "safety net" of public assistance--because he will be deported. And, his motivation to commit the offense--to provide for his family--is at least as salutary as the defendant's motive in Rivera. See also Pena, 930 F.2d at 1494-95 (single mother supporting infant, her own 16 year old daughter, and her daughter's infant).

Similarly, in Sclamo, the defendant enjoyed a "crucial" relationship with his girlfriend's son--who had been abused by his biological father--and was believed to be necessary to continue the youth's recovery and scholastic improvement. 997 F.2d at 973-74. Here, again, Mr. *Is presence is crucial to his family, particularly since they will have to start over in Mexico.

Perhaps the closest case is Alba, 933 F.2d 1117. There, the defendant was married 12 years, he had two daughters, and he lived with -- and cared for -- his disabled father and paternal grandmother. He worked hard to support all of these family members. Under these facts, the Second Circuit affirmed a downward departure. Id. at 1122.

Alba is very similar. Mr. * has a similarly long lasting relationship. He has more children. He supports two children from a previous marriage, two in his current marriage, and two from his current wife's previous relationship. In addition, and unlike the defendant in Alba, his family can no longer live in the United States.

In short, none of the published cases permitting departures involve families who will have to start over in Mexico. None of the published cases thus address difficult economic circumstances in that country. None of the published cases involve six children depending upon a parent who will be deported. As a consequence, departure is proper here.

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