Opinion
No. 04-40090-01-SAC.
November 17, 2004
SENTENCING FINDINGS
The defendant on August 10, 2004, entered a plea of guilty to the single count indictment that charged him with illegal re-entry by a deported felon in violation of 8 U.S.C. § 1326(a). There was no plea agreement in the case. The defendant remains in custody pending sentencing.
For the offense in question, the base offense level is eight under U.S.S.G. § 2L1.2(a). The Presentence Report ("PSR") recommends a sixteen-level enhancement pursuant to § 2L1.2(b)(1)(a) for the defendant's prior felony conviction of solicitation to commit burglary of a dwelling. The PSR calculates a total offense level of twenty-one after a three-level adjustment for acceptance of responsibility. The defendant's criminal history points total nine resulting in a criminal history category of four. The defendant's sentencing guideline range is fifty-seven to seventy-one months.
FIRST OBJECTION: The defendant objects to the sixteen-level increase for the specific offense characteristic of a prior conviction of a crime of violence. The defendant argues that solicitation is not an offense covered within the guideline comments defining "crime of violence" for purposes of U.S.S.G. § 2L1.2. The defendant cites Coronado-Durazo v. I.N.S., 123 F.3d 1322 (9th Cir. 1997), as a decision construing Arizona's solicitation statute and holding that solicitation to possess a narcotic drug under Arizona law is not a controlled substance violation requiring deportation under the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2)(B)(i). The Ninth Circuit concluded that Congress had limited deportation for generic crimes to conspiracy and attempt and omitted any reference to solicitation. 123 F.3d at 1325-26. The defendant also cites Leyva-Licea v. I.N.S., 187 F.3d 1147 (9th Cir. 1999), which followed Coronado-Durazo and held that Arizona's generic solicitation statute did not constitute an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) because the Controlled Substances Act, 21 U.S.C. § 801 et seq., lists attempt and conspiracy but does not mention solicitation. The government has filed no response.
Ruling
The decisions cited by the defendant are distinguishable in that the issue here is not whether the defendant's prior conviction qualifies as a deportable offense under the Immigration and Nationality Act or as an aggravated felony with reference to the Controlled Substances Act. As the comments to U.S.S.G. § 2L1.2 make clear, only the enhancement at (b)(1)(C) is to be given the same meaning of "aggravated felony" as that term is defined at 8 U.S.C. § 1101(a)(43). For that reason, the absence of a solicitation offense in the Immigration and Nationality Act or the Controlled Substances Act is of no significance to our analysis.
The crime of burglary of a dwelling is specifically included in the comments as a "crime of violence" under U.S.S.G. § 2L1.2. The only issue here is whether solicitation to commit a burglary of a dwelling comes within the guideline's definition of a crime of violence. Application note five to U.S.S.G. § 2L1.2 makes clear that offenses within subsection (b)(1) are not limited to the described substantive offenses: "Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring and attempting to commit such offense." (italics added). It is significant to note that in guideline parlance, "[t]he term `includes' is not exhaustive. . . ." United States v. Lang, 364 F.3d 1210, 1221 (10th Cir. 2004) (quoting U.S.S.G. § 1B1.1, comment. (n. 2)), petition for cert. filed, ___ U.S.L.W. ___ (Sep. 2, 2004) (No. 04-6200). "`Consequently, the omission of solicitation from the list does not carry legal significance.'" United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir. 2003) (quoting United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996)), amended on denial of rehearing, 341 F.3d 852 (9th Cir. 2003), cert. denied, 124 S. Ct. 1118 (2004). The Ninth Circuit in Shumate in construing nearly identical language defining "crime of violence" under § 4B1.2 and its supporting application note one concluded:
The note assures that conviction of other acts, which amount to aiding and abetting, conspiracy, attempt or solicitation, are also crimes of violence and that the failure to mention solicitation has no "legal significance." Were that not so, there would have been no need for the note to point out that additional categories are included within the substance of crime of violence offenses, for they would be included automatically. In other words as to those offenses, the note would be mere surplusage. Thus, it is the note that sweeps solicitation into the crime of violence. . . .329 F.3d at 1031 (footnote omitted). Properly construed, a crime of violence under § 2L1.2(b)(1)(A) reaches an offense of solicitation to commit an offense that otherwise meets the definition of a crime of violence. The weight of the case law supports this construction of the guidelines. See, e.g., United States v. Shumate, 329 F.3d at 1030-31 (soliciting the delivery of marijuana is a controlled substance offense under § 4B1.1); United States v. Walker, 181 F.3d 774, 780-81 (6th Cir. 1999) ("[S]olicitation to commit aggravated robbery under Tennessee law is a `crime of violence' for purposes of career offender status under U.S.S.G. § 4B1.1."), cert. denied, 528 U.S. 980 (1999); United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996) (solicitation to commit murder is a crime of violence under § 4B1.1); but see United States v. Dolt, 27 F.3d 235, 240 (6th Cir. 1994) (solicitation of a drug offense is not a controlled substance offense for purposes of § 4B1.1). The Sixth Circuit in Walker did not follow the Dolt decision because the offense of solicitation of robbery did present a serious risk of injury. The Ninth Circuit in Shumate notes that the court in Dolt court in interpreting the guideline commentary overlooked the significance of the "include" language. 329 F.3d at 1031. Persuaded by the Ninth Circuit's analysis of nearly identical guideline language under § 4B1.2, the court denies the defendant's objection and concludes that solicitation to commit burglary of a dwelling is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A).
SECOND OBJECTION: For the first time in his sentencing memorandum, the defendant objects to any sentence imposed under the sentencing guidelines because the guidelines are unconstitutional based on Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).
Ruling
The defendant's single sentence objection appears to be simply an effort to preserve this issue for subsequent proceedings. The court overrules the objection but will impose an alternative sentence pursuant to 18 U.S.C. § 3553(a) and treat the guidelines as advisory only.
MOTION FOR DOWNWARD DEPARTURE
In his sentencing memorandum, the defendant seeks a downward departure of at least eighteen months based on the following grounds: (1) deportable alien status results in more severe prison conditions; (2) defendant's reasons for reentry are less serious then typical offender; (3) defendant reentered to prevent perceived greater harm to family; (4) defendant is assimilated into culture of being an American citizen; (5) a departure is appropriate under the totality of circumstances. The government has filed no response.
Ruling
It is the defendant's burden to prove he is entitled to a downward departure. United States v. Archuleta, 128 F.3d 1446, 1449 (10th Cir. 1997). A district court may depart from the applicable guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b).
The court understands and appreciates its discretion to depart downward from the sentencing guidelines based upon each of the grounds argued by the defendant. Based on what is presented and argued in the defendant's sentencing memorandum, the court would deny the request for a downward departure. The defendant has not shown anything unique or particularly mitigating about his deportable alien status as to warrant a departure. There are many deportable aliens in the Bureau of Prison's custody who have committed immigration offenses and find themselves in this very same situation. As for the defendant's professed reasons for reentering the United States, the court simply is not persuaded by the arguments when weighed against the defendant's past number of deportations, prior criminal convictions, and apparent connections to other illegal activity while in the United States. Nor does the court give much credence to the defendant's cultural assimilation argument considering the extent of the defendant's criminal history. There is little to show that the defendant has been culturally assimilated into the mores, ethics, and laws of this country. Nor is this one of those extremely rare cases where the different factors uniquely combine to warrant a departure. For these reasons, the court denies the defendant's request for a downward departure, but it does find that these circumstances warrant a sentence at the low end of the guideline range.
IT IS THEREFORE ORDERED that the defendant's objections to the PSR and request for downward departure (Dks. 17 and 18) are denied.