Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-20-2001

USA v. Castano-Vasquez
Precedential or Non-Precedential:

Docket 00-3861




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Recommended Citation
"USA v. Castano-Vasquez" (2001). 2001 Decisions. Paper 213.
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Filed September 17, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3861

UNITED STATES OF AMERICA

v.

CONRADO CASTANO-VASQUEZ,

       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Criminal No. 00-cr-00071-1)
District Court Judge: The Honorable Joseph A.
Greenaway, Jr.

Argued: June 21, 2001

Before: ROTH, AMBRO, and FUENTES, Circuit Judg es

(Opinion Filed: September 17, 2001)

       Andrea D. Bergman (argued)
       Assistant Federal Public Defender
       972 Broad Street
       Newark, NJ 07102

        ATTORNEYS FOR APPELLANT
       Robert J. Cleary
        United States Attorney
       George S. Leone
        Chief, Appeals Division
       Michael Martinez (argued)
        Assistant U.S. Attorney
       970 Broad Street
       Newark, NJ 07102-2535

        ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge:

Defendant Conrado DeJesus Castano-Vasquez pled guilty
to a one-count indictment charging him with knowingly and
intentionally importing more than 100 grams of heroin in
violation of 21 U.S.C. S 952(a). At sentencing, he moved for
a downward departure under the newly enacted U.S.S.G.
S 5K2.20, which permits a departure "in an extraordinary
case" on the basis of the defendant's "aberrant behavior."
The application notes to S 5K2.20 list three definitional
characteristics of the behavior a defendant must meet
before an aberrant behavior departure can even be
considered and then lists five factors that a sentencing
court may consider in determining if the case is
extraordinary and a departure is warranted. The District
Court determined that Castano-Vasquez met the three
definitional characteristics but that his case was not
extraordinary and, without referring to each of the five
factors, denied the departure and sentenced him to a 46-
month term of imprisonment. On appeal, Castano-Vasquez
contends that, in denying the departure, the court misread
the guideline by failing to consider each of the enumerated
factors.

We conclude that the most natural reading of S 5K2.20,
in the context of the Guidelines as a whole, requires a
sentencing court to address two separate and independent
inquiries: whether the defendant's case is extraordinary and
whether his or her conduct constituted aberrant behavior.

                                 2
Further, in determining whether a particular case is
extraordinary, we hold that a sentencing court may, but is
not obligated to, consider the five factors delineated in
Application Note 2 of S 5K2.20. Because the District Court
here expressly considered two of the factors and certainly
heard defense counsel's arguments as to all five, we
conclude that the court properly exercised its discretion in
denying the departure request in this case. We will
therefore affirm the judgment.

I.

On February 6, 2000, Castano-Vasquez arrived at
Newark International Airport on a flight from Bogota,
Colombia. In the course of a routine customs inspection,
agents searched a black piece of luggage, which Castano-
Vasquez had claimed and had given consent to search. The
search revealed a false bottom, and further searching
revealed a white powdery substance that tested positive for
heroin. Subsequent lab analysis indicated that the net
weight of the heroin was 985.5 grams.

On February 9, 2000, a grand jury in the District of New
Jersey returned a one-count indictment, charging Castano-
Vasquez with knowingly and intentionally importing more
than 100 grams of heroin in violation of 21 U.S.C.S 952(a).
On June 30, 2000, Castano-Vasquez pled guilty to the
indictment. At sentencing on November 13, 2000, the
District Court entertained a defense motion brought under
U.S.S.G. S 5K2.20 for a downward departure on the ground
that the criminal conduct constituted aberrant behavior.

In support of the departure, defense counsel submitted
21 letters from Castano-Vasquez' family, friends, co-
workers, and acquaintances, all of whom attested to his
good character. Counsel also proffered information about
Castano-Vasquez' financial and medical conditions that had
motivated him to commit the offense, the theft of the truck
that he had used in his farming livelihood, and his
subsequent loss of ability to provide for his family. Counsel
further attested to Castano-Vasquez' age, education, and
employment history, all of which were documented in the
Presentence Investigation Report. Finally, counsel proffered

                               3
that Castano-Vasquez was a well liked member of his
community who drove others to the polls so that they could
vote in the elections. In sum, counsel vouched "that it's not
every day that your Honor is going to see an individual of
the character of Mr. Castano-Vasquez, notwithstanding the
terrible error in judgment that he made when he decided to
make this trip."

Because S 5K2.20 had become effective barely two weeks
before Castano-Vasquez' sentencing hearing, the District
Court thoughtfully engaged both counsel in an extended
discussion regarding how to interpret and apply it. The
court ultimately concluded that the Commission sought to
accomplish the following:

       It's asking you to define whether you think this is an
       extraordinary case.

       How do you define whether it's an extraordinary
       case?

       Literally, whether it is outside of the ordinary.

       And that's a determination separate and apart from
       whether the three factors of aberrant behavior are met.
       And that's so because of the way it's written. Because
       the predicate to looking at whether the three factors of
       aberrant behavior are met is, is it an extraordinary
       case?

       Once a determination is made that it's an
       extraordinary case, then we look to whether the three
       factors are met.

The court then proceeded to analyze the facts pertaining to
Castano-Vasquez. Initially, the court found that Castano-
Vasquez had met the three definitional requirements for
aberrant behavior. But then, it concluded:

       Now, if we look at the economic factors that you've
       pointed out, I can't say in my experience that it's
       extraordinary. If we look at the fact that he's in his
       fifties, as one of many thing to look at, I can't say that
       that in and of itself makes it extraordinary. If we look
       at the fact that he's a hard-working man with a family
       and will do anything in the world for his family, as

                               4
       courier cases go, that doesn't seem to make it
       extraordinary. And any of those factors in combination
       I don't think makes it extraordinary.

Defense counsel then interceded with more proffers
concerning Castano-Vasquez' age, medical and financial
problems, and community work. In the end, the District
Court remained unconvinced. Using the analytical
construct it had previously set forth, the court found that
this case was not extraordinary:

       I say unequivocally that Mr. Castano-Vasquez is an
       extraordinary person and prior to this has led an
       exemplary life as far as I can tell from the facts that are
       before me, but I think to be true to my understanding
       of what the sentencing guidelines intend here in
       attempting to give the Court discretion in providing in
       appropriate circumstances a downward departure, that
       the kind of extraordinary case that they contemplate is
       just not here.

The court denied the downward departure motion and
sentenced Castano-Vasquez to a 46-month term (the
bottom of the guideline range), followed by four years of
supervised release.

The District Court exercised jurisdiction over this case
pursuant to 18 U.S.C. S 3231, and we have appellate
jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C.
S 3742(a). We exercise plenary review over whether the
District Court adopted the proper legal standard for
interpreting and applying this guideline. United States v.
Torres, 

, 145 (3d Cir. 2001). However, "[w]e
lack jurisdiction to review a refusal to depart downward
when the district court, knowing it may do so, nonetheless
determines that departure is not warranted." United States
v. McQuilkin, 

, 729 (3d Cir. 1996).

II.

In relevant part, the text of S 5K2.20, which became
effective on November 1, 2000, provides as follows:

       A sentence below the applicable guideline range may be
       warranted in an extraordinary case if the defendant's
       criminal conduct constituted aberrant behavior. . . .

                                5
Commentary

       Application Notes:

       1. For purposes of this policy statement --

       "Aberrant behavior" means a single criminal
       occurrence or single criminal transaction that (A)
       was committed without significant planning; (B)
       was of limited duration; and (C) represents a
       marked deviation by the defendant from an
       otherwise law-abiding life. . . .

       2. In determining whether the court should depart on
       the basis of aberrant behavior, the court may
       consider the defendant's (A) mental and emotional
       conditions; (B) employment record; (C) record of
       prior good works; (D) motivation for committing the
       offense; and (E) efforts to mitigate the effects of the
       offense.

On appeal, Castano-Vasquez contends that the District
Court erred by ignoring the five factors in Application Note
2 in assessing the applicability of the aberrant behavior
departure. Specifically, he claims that the court did not
look at those factors to determine whether his case was
"extraordinary," but rather, misunderstood the defense
argument to be that, because he met the criteria for
"aberrant behavior," he necessarily also qualified for the
departure. Moreover, he argues that the court considered
only his financial motivation for committing the offense in
finding that the case was not extraordinary.

As a policy statement, S 5K2.20 is an authoritative guide
for sentencing courts as to the meaning of the departure
guidelines generally found in Chapter Five, Part K of the
Guidelines. Stinson v. United States, 

, 42
(1993); United States v. Baird, 

, 862-63 (3d
Cir. 1997) ("As we proceed, we bear in mind that not only
is each guideline legally binding on the courts, but so too
are the accompanying policy statements, and commentary,
so long as neither the policy statements nor the
commentary is inconsistent with any guideline.") (citations
omitted).1 Under S 5K2.20, a sentencing court may depart
_________________________________________________________________

1. In passing, we note that, at one point during the sentencing hearing,
the District Court stated that S 5K2.20 "is a policy statement, I'm not

                               6
downwards from the applicable guideline range "in an
extraordinary case if the defendant's criminal conduct
constituted aberrant behavior."2 In proposing this new
guideline, the Commission explained that it was responding
to a split in the circuits regarding "whether, for purposes of
downward departures from the guideline range, a`single act
of aberrant behavior' . . . includes multiple acts occurring
over a period of time." U.S. Sentencing Guidelines Manual,
supp. app. C, amend. 603, at 78 (2000) (addressing
Chapter One, Part A, Subpart 4(d) and citing, among other
cases, United States v. Marcello, 

, 760-61 (3d
Cir. 1994), in which we held that a single act of aberrant
behavior requires a spontaneous, thoughtless, single act
involving lack of planning). The Commission, however,
adopted neither the majority nor the minority circuit view
on this issue. See 

a threshold matter, the Commission restricted
the availability of a departure only to extraordinary cases.
See 

did not expound on the meaning of
"extraordinary," and in such a circumstance, we give that
term its ordinary meaning. See Chapman v. United States,

, 461-62 (1991) (ordinary meaning applies in
the absence of a statutory definition or established common
law meaning). The ordinary meaning of "extraordinary" is
"more than ordinary . . . going beyond what is usual,
regular, common, or customary . . . exceptional to a very
_________________________________________________________________

bound by it." However, while Castano-Vasquez quotes this language in
his brief, he does not rely on it to argue that the court failed to follow
the
policy statement. Indeed, our review of the entire transcript does not
reflect that the court in any way disregarded the guideline.

2. In the text of S 5K2.20, the Commission also identified five exceptions
that would render a downward departure on this basis impermissible,
but none of them apply here. These exceptions are: (1) the offense
involved serious bodily injury or death; (2) the defendant discharged a
firearm or otherwise used a firearm or a dangerous weapon; (3) the
instant offense of conviction is a serious drug trafficking offense; (4)
the
defendant has more than one criminal history point, as calculated under
Chapter Four of the Guidelines; and (5) the defendant has a prior
federal, or state, felony conviction, regardless of whether the conviction
is countable under Chapter Four.

                               7
marked extent." Webster's New Int'l Dictionary 807 (3d ed.
1993). We leave the determination of whether a defendant
presents an extraordinary case to the sound discretion of
the sentencing court. See U.S. Sentencing Guidelines
Manual S 5K2.0 (2000) ("The decision as to whether and to
what extent departure is warranted rests with the
sentencing court on a case-specific basis."); see also Koon
v. United States, 

, 98 (1996).

The Commission then defined "aberrant behavior" in
Application Note 1 to mean "a single criminal occurrence or
single criminal transaction that (A) was committed without
significant planning; (B) was of limited duration; and (C)
represents a marked deviation by the defendant from an
otherwise law-abiding life." The Commission explained that
its definition was more flexible than the interpretations
given by most of the circuits and attempted to provide
guidance and limitations regarding what could be
considered such behavior. See U.S. Sentencing Guidelines
Manual, supp. app. C, amend. 603, at 78-79 (2000). At the
same time, it declined to adopt a "totality of the
circumstances" approach and believed that the guideline
would not broadly expand departures for aberrant behavior.
See 

Specifically, the Commission stated that, "[f]or offense
conduct to be considered for departure as aberrant
behavior, the offense conduct must, at a minimum have"
the three characteristics concerning planning, duration,
and deviation found in the text of the guideline. 

Commission stated that S 5K2.20"places
significant restrictions on the type of offense and the
criminal history of the offender that can be considered for
this departure." 

explained that these
restrictions "reflect a Commission concern that certain
offense conduct is so serious that a departure premised on
a finding of aberrant behavior should not be available to
those offenders who engage in such conduct." 

lines, the Commission stated that "the restrictions
on criminal history reflect a Commission view that
defendants with significant prior criminal records should
not qualify for a departure premised on the aberrant nature
of their current conduct." 

Commission

                               8
recognized that "a number of other factors may have some
relevance in evaluating the appropriateness of a departure
based on aberrant behavior." 

"[s]ome of the
relevant factors identified in the case law and public
comment . . . in an application note," apparently referring
to Application Note 2, which contains the five factors at
issue in this appeal. 

an analytical construct for applying this
guideline, the District Court characterized the inquiry of
whether a case was "extraordinary" as a predicate to
determining whether the three factors for aberrant behavior
in Application Note 1 are met. Castano-Vasquez does not
challenge this order of analysis in the court's construct.
Rather, he contests the degree to which the sentencing
court should consider the five factors in Application Note 2
before making its determination as to whether a particular
case is extraordinary.3

Castano-Vasquez' claim fails because the premise of his
argument -- that the court looked solely to his financial
motivation for committing the offense in finding that the
case was not extraordinary -- is factually inaccurate. In
determining that Castano-Vasquez did not present an
extraordinary case, the court expressly relied on his age,
financial condition, and employment history. From the
transcript, we may confidently infer that the court
considered at least two of the five factors in Application
Note 2 (employment record and motivation for committing
the offense) and assuredly heard defense counsel's proffer
as to all five. And, in any case, as the Government points
out, while a district court is statutorily obligated to "state in
open court the reasons for its imposition of the particular
sentence," 18 U.S.C. S 3553(c), it is not similarly obligated
to explain its refusal to depart downwards, United States v.
Georgiadis, 

, 1222-23 (3d Cir. 1991). Thus,
even if the District Court were required to consider all of
the factors in Application Note 2, the court would not then
_________________________________________________________________

3. We note that, despite its comments on the order of consideration, the
District Court did, in fact, first find that Castano-Vasquez had met the
three definitional factors in Application Note 1, and then it determined
that this case was not an extraordinary one.

                               9
be required to state expressly that it had done so in
denying Castano-Vasquez' request for a departure.
Notwithstanding this factual inaccuracy, Castano-
Vasquez' contention fails as a matter of law. The precise
legal question presented by this appeal is whether the
District Court was obligated to consider the five factors in
Application Note 2 in determining whether Castano-
Vasquez' case was extraordinary. The term "extraordinary"
and the phrase "if the defendant's criminal conduct
constituted aberrant behavior" appear in the same opening
sentence of the text of S 5K2.20. The guideline further
expressly lists three requirements that the defendant must
satisfy in order for the court to make a finding that the
criminal conduct constituted aberrant behavior -- a reading
that is supported by the Commission's own proposal. While
the guideline is silent as to what factors make a case
extraordinary, the Commission stated in its proposal that it
intended to restrict the availability of a departure only to
such cases. All of these facts suggest that a sentencing
court is obligated to make two separate determinations: (1)
whether the defendant's case is extraordinary, and (2)
whether his or her criminal conduct constituted aberrant
behavior. If the defendant cannot satisfy either of these two
inquiries, then, of course, no departure would be
warranted. Unlike what transpired here, however, there is
no need to interpret the guideline as requiring a specific
order to that analysis -- that is, a finding that the case is
extraordinary before a finding on whether the defendant's
conduct constitutes aberrant behavior. The guideline does
not bind the sentencing court to a particular order of
analysis. As the District Court itself recognized, these
separate and independent inquiries both must be satisfied
before granting a departure.

Assuming, as in the case of Castano-Vasquez, that the
defendant can meet the requirements for aberrant behavior,
that leaves open the question of how the sentencing court
is to determine whether the particular case is extraordinary
such that a departure is warranted. In proposing the
guideline, the Commission recognized that "a number of
other factors may have some relevance in evaluating the
appropriateness of a departure" and provided a list of

                               10
"[s]ome of the relevant factors identified in the case law and
public comment" in Application Note 2 for the court's
consideration. Nothing in the application note either
obligates the court to consider these factors or intimates
that the list is exhaustive, thereby restricting the court's
discretion.4 Rather, the factors serve merely as helpful
guideposts for the court in determining whether it should
depart under S 5K2.20. These observations suggest that the
factors in Application Note 2 provide criteria that a
sentencing court may, but is not bound to, consider when
assessing whether a case is extraordinary.

Accordingly, after reviewing the text and supporting
materials, we conclude that the most natural reading of
S 5K2.20, in the context of the Guidelines as a whole,
supports an analytical construct in which the sentencing
court must conduct two separate and independent
inquiries, both of which the defendant must satisfy before
a departure can be granted. That is, the court must
determine whether the defendant's case is extraordinary
and whether his or her conduct constituted aberrant
behavior. Further, in determining whether a particular case
is extraordinary, we hold that a sentencing court may, but
is not obligated to, consider the five factors delineated in
Application Note 2 of S 5K2.20.

Due to the guideline's recent vintage, we are unable to
find many courts that have issued opinions regarding
requests for downward departures on the ground of
aberrant behavior. But at least one district court appears to
_________________________________________________________________

4. Cf. United States v. Stevens, 

, 242 (3d Cir. 2000) (under
Fed. R. Crim. P. 52(b), "this Court may vacate and remand [defendant's]
sentence . . . but is not required to do so") (internal quotations and
citations omitted), cert. denied, 

(2001); United States v.
Loy, 

, 370 (3d Cir. 1999) ("What[defendant] overlooks in
making this argument is that the relevant provision merely suggests that
the court `may' ameliorate or suspend the condition where there is low
risk of future substance abuse. It does not state that the court is
required to do so."), cert. denied, 

(2000); but cf. United
States v. Torres, 

, 147 (3d Cir. 2001) ("we hold that when
considering a departure for substantial assistance, a sentencing court
not only must conduct a qualitative, case-by-case analysis but also must
examine S 5K1.1's five enumerated factors").

                               11
concur with the above discussion. In United States v. Kelly,
a district court addressed a defendant's request for a
S 5K2.20 departure, outlining the order of analysis as
follows: "A departure for aberrant behavior is warranted
only where the offense conduct [meets the three
requirements in Application Note 1]. If each of these factors
is met, courts may consider the [five] factors[found in
Application Note 2] in determining whether to grant a
downward departure under this provision." No. 99 CR 422
RWS, 

, at *5 (S.D.N.Y. Apr. 17, 2001).
While Kelly could be read to imply a specific order of
analysis, the end result is the same. The two inquiries --
whether the defendant's case is extraordinary and whether
his or her conduct constituted aberrant behavior-- are
independent, and thus, the defendant must satisfy them
both, irrespective of the order in which the court chooses to
address them. Indeed, we are aware of only two courts that
have issued written decisions on S 5K2.20 departure
motions, and both have denied them on the basis that the
respective defendants had each failed to satisfy one or more
of the three definitional requirements for aberrant behavior.
See id.; United States v. Bailey, No. 1:00CR00044, 

, at *2 (W.D. Va. May 2, 2001).

In sum, Castano-Vasquez' contention here -- that the
District Court failed to consider all of the five factors in
Application Note 2 in denying the departure motion-- is
factually inaccurate. Moreover, the court was not obligated
to consider each and every factor because the Commission
promulgated a non-exhaustive list of relevant factors,
instructing sentencing courts that they may, but are not
obligated to, consider them in determining whether to
depart. Therefore, we conclude that the District Court
properly exercised its discretion in denying Castano-
Vasquez' departure request.

III.

For the foregoing reasons, we will affirm the District
Court's judgment.

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A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               13