In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3227

United States of America,

Plaintiff-Appellant,

v.

Jose Bautista,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 97--Joan B. Gottschall, Judge.

Argued January 17, 2001--Decided July 12, 2001


  Before Easterbrook, Evans, and Williams,
Circuit Judges.

  Williams, Circuit Judge. Jose Bautista, a
resident alien of the United States, pled
guilty to one count of traveling in
interstate commerce with the intent and
for the purpose of engaging in sexual
acts with a minor, in violation of 18
U.S.C. sec. 2423(b). At sentencing, the
district court found that Bautista would
suffer an "enormously draconian
deprivation" as a result of the
deportation that would likely follow his
sentence, and departed downward by three
levels from the applicable sentencing
guideline range. The government appeals.
We conclude that the district court
abused its discretion in departing
downward, and vacate the sentence and
remand for resentencing.

I

  Jose Bautista initiated and engaged in
sexually explicit communications in
Internet chatrooms and by electronic
mail, and eventually arranged to meet and
have sex, with a person whom he believed
to be a 13-year old girl. The person
turned out to be an undercover police
officer, and Bautista was arrested after
he traveled from Maryland to Illinois for
their planned meeting. In his plea
agreement, Bautista admitted that he
engaged in similar communications in the
past with other   minor females across the
country. At the   time of his arrest,
Bautista was 26   years old, had regular
employment, and   owned rental properties.

  At the sentencing hearing, Bautista’s
mother, brother, and sister testified
that they came to the United States in
1987 from Peru to get away from
Bautista’s father, Laureano Bautista
("Laureano"), an alcoholic who physically
and emotionally abused Bautista, his
mother, and siblings. They reported that
Laureano followed the family to the
United States, where the abuse worsened,
but returned to Peru in 1996 after Mrs.
Bautista obtained a divorce. They said
that Bautista has no friends or family in
Peru other than his father.

  A clinical psychologist who began
treating Bautista after his indictment
submitted a statement to the court. The
psychologist diagnosed Bautista as having
a "schizoid personality disorder," which
he described as a "pervasive pattern of
detachment from social relationships and
a restricted range of expression of
emotions in interpersonal settings."
Individuals with this disorder prefer
spending time by themselves and appear
indifferent to opportunities to develop
close relationships, and appear to derive
little satisfaction from being part of a
family or other social group. He also
described Bautista as "an example of a
psychological phenomenon known as learned
helplessness," with little defenses
against hostility. In the psychologist’s
opinion, Bautista would suffer further
psychological harm if he returned to his
father’s house. The psychologist also
reported, however, that two employers who
have known Bautista for over ten years
describe him as an intelligent, kind, and
responsible worker.

  In his motion for a downward departure,
Bautista argued that the conditions of
his confinement would be more severe for
him than for other offenders because his
status as a deportable alien disentitles
him to serve any part of his sentence in
a minimum security prison or community
confinement. Bautista also argued that
deportation would be especially harsh on
him because he could not live or communi
cate with his father the only person he
knew in Peru--and would be completely cut
off from his family and home in the
United States. The district judge stated
that she would not depart downward based
on any effect deportation would have on
his conditions of confinement, but did
depart downward three levels based on her
finding of "the enormously draconian
deprivation that the deportation is going
to effectuate in this case." She further
explained her reasons:

I think that there are circumstances
in this case that do take it
outside the heartland. I think that
we have a young man who is very
injured . . . . [T]he idea of this
young man, who is so isolated, and
whose only real meaningful contacts
are with his family[,] being
separated from his family and being
sent back to a place where he
hasn’t been since he was 12 years
old, where the only person he knows
is the father who has terrorized him
I think is quite unusual. Very
unusual. And so I don’t think this
is in any sense a normal case.

Finally, the judge’s written order stated
that the departure was warranted because
"the impact of deportation on this
defendant is itself a punishment so
severe as to remove this case from the
heartland." The court sentenced Bautista
to 18 months’ imprisonment, the low end
of the resulting guideline range./1

II

  A court has authority to depart from the
United States Sentencing Commission
Guidelines in cases presenting
"mitigating circumstances of a kind or
degree not adequately taken into
consideration by the Commission." Koon v.
United States, 

, 94 (1996).
The Guidelines specify various factors
that are apt to make a case unusual, and
specify whether certain factors are or
are not ordinarily relevant to the
decision to depart from the applicable
guideline range. 

Some
factors identified by the Commission can
never be the basis for a departure
(including race, sex, and national
origin), but other than the prohibited
factors, the Guidelines "place
essentially no limit on the number of
potential factors that may warrant a
departure." 

A factor not
mentioned in the Guidelines may be a
basis for departure only if it places the
case "outside the heartland of cases
contemplated by both the specific,
relevant guideline(s) and the Guidelines
as a whole." United States v. Schulte,

, 1109 (7th Cir. 1998). We
review a district court’s decision to
depart from the Guidelines for abuse of
discretion, but "whether a particular
factor is a permissible basis for
departure under any circumstances is a
question of law" that we review de novo.

.

  We have previously considered whether a
defendant’s deportable alien status--a
factor not mentioned in the Guidelines--
is a permissible consideration at
sentencing. In United States v. Gonzalez-
Portillo, 

, 1125 (7th Cir.
1997), we held that, for a defendant
sentenced under the guideline for
unlawfully entering the United States,
U.S.S.G. sec. 2L1.2, the prospect of
deportation was "certainly accounted for"
in that guideline, and therefore could
not be a basis for a departure. But in a
later case involving a crime that may or
may not involve illegal entry or presence
in the United States (importing heroin),
we reversed the district court’s holding
that it did not have authority to depart.
United States v. Farouil, 

,
847 (7th Cir. 1997). For that crime, we
held that there was no basis for conclud
ing that the Guidelines took the
defendant’s alien status into account in
setting the level for the offense, and
therefore the court was free to consider
the defendant’s argument that the
conditions of his confinement would be
exceptionally harsh on him because, for
example, he would be unable to serve any
part of his sentence in a minimum
security facility. 

United
States v. Guzman, 

, 834 (7th
Cir. 2001), another case like Farouil
involving a crime that did not invariably
involve illegal entry into the United
States (conspiracy to distribute
methamphetamine), we rejected the
defendant’s argument that her expected
deportation was itself punitive and
therefore warranted a reduction in her
sentence because such an argument implied
that "any alien who commits a crime
should receive a shorter sentence than a
citizen."

  As in Farouil and Guzman, Bautista’s
crime--traveling in interstate commerce
to have sex with a minor--does not depend
on illegal entry or presence into the
United States. The government contends,
however, that Guzman forecloses any
consideration of deportable alien status
in making a decision to depart from the
Guidelines except to the extent that
status affects the defendant’s conditions
of confinement. However, unlike the
defendant in Guzman, Bautista does not
rely solely on the fact of his impending
deportation (a prospect shared by all
aliens who commit a deportable offense),
but instead points to individualized
circumstances that, he argues, make
deportation extraordinarily harsh for
him. In rejecting the deportation-as-
punishment argument in Guzman, and in
approving consideration of the effect
alien status may have on conditions of
confinement in Farouil, we did not rule
out consideration of all other
conceivable circumstances that might be
related to deportation.

  Even so, the government contends that we
should rule out consideration of the
alleged harsh effects of deportation in
this case. Basing a downward departure on
the harsh effects of deportation is
irrational, according to the government,
because the shortened sentence merely
hastens the onset of those effects. See
United States v. Restrepo, 

,
647 (2d Cir. 1993). But the apparent
paradox disappears if one views the
departure not as remedying the
consequences of deportation, but as an
offset to those consequences--just as in
Farouil, where we held that a departure
could be warranted to offset unusually
harsh conditions of confinement. 

; see also United States v.
Mason, 

, 1496 n.7 (D.C. Cir.
1992) (observing that reduction in
sentence may be proper to offset the
additional punishment of solitary
confinement necessary to protect
defendant from abuse in prison). The
analogy with Farouil is not a perfect
one, because the circumstances relied
upon by the district court here concern
not what will happen during the term of
the defendant’s sentence, but instead
what may occur afterward. But we see
nothing in the Guidelines that forbids
consideration of extralegal consequences
that follow a sentence as grounds for a
departure. In Koon, for example, the
Supreme Court reversed the Ninth
Circuit’s holding that career loss
following imprisonment could never be
relevant to 

.
And because the circumstances urged here
(the claimed "draconian" effects of
deportation on Bautista) are not
prohibited considerations under the
Guidelines, we do not rule out
consideration of them in appropriate
cases. See 

(holding that
"for the courts to conclude a factor must
not be considered under any circumstances
would be to transgress the policymaking
authority vested in the Commission"); see
also United States v. Coleman, 

, 358 (6th Cir. 1999) (en banc) ("Koon
makes clear that a court may not
categorically exclude the consideration
of any one factor"); United States v.
Charry Cubillos, 

, 1344 (9th
Cir. 1996).

  However, that an "unmentioned factor"
may be considered does not mean that
courts have unfettered authority to
depart whenever that factor is invoked.
Instead, when evaluating whether to
depart based on such a factor, the judge
"is to strive to remain within the
conceptual universe of the guidelines,
moving by analogy from its explicit
provisions and stated objectives to the
novel situation presented by the case
before him," 

,
bearing in mind "the Commission’s
expectation that departures based on
grounds not mentioned in the Guidelines
will be ’highly infrequent.’" 

(quoting 1995 U.S.S.G. ch. 1,
pt. A, p. 6); see also 

(stating that the power to
depart based on an unmentioned factor is
"quite limited").

  Viewed in the framework of the
Guidelines as a whole, and by analogy to
the various grounds for departure
identified in the Guidelines, we are
convinced that a downward departure based
on collateral consequences of deportation
is justified only if the circumstances of
the case are extraordinary, and that it
is impossible to conclude that this is
such a case. Bautista’s primary argument
is that he has lived for half his life in
the United States and that deportation
will be especially harsh because he will
be cut off from his family and home./2
Departure on this basis would be akin to
one based on "family ties"--a discouraged
factor that is grounds for departure only
in extraordinary circumstances. See
U.S.S.G. sec. 5H1.6; United States v.
Carter, 

, 474 (7th Cir.
1997); United States v. Lipman, 

, 730 (9th Cir. 1998). Similarly, to
the extent that permanent separation from
family, job, and the like are the
necessary consequences of deportation for
all aliens, or at least for those aliens
who have made the United States their
home, an argument based on these effects
comes very close to the deportation-as-
punishment theory that we rejected in
Guzman. 

; see also
United States v. Tejeda, 

, 88
(2d Cir. 1998) (per curiam)
("[D]eportation alone does not constitute
an extraordinary consequence that would
justify a downward departure"); United
States v. Leandre, 

, 808
(D.C. Cir. 1998). Here, there is nothing
extraordinary about Bautista’s
relationship with his mother and
siblings, or his separation from them
upon his incarceration and deportation.
See United States v. Wright, 

, 815-16 (7th Cir. 2000) (reversing
departure based on ordinary effect of
mother’s long incarceration on her young
child); 

("’Disruption of the defendant’s life,
and the concomitant difficulties for
those who depend on the defendant, are
inherent in the punishment of
incarceration.’") (quoting United States
v. Johnson, 

, 128-30 (2d Cir.
1992)).

  Furthermore, we have held that childhood
abuse and the resulting psychological
damage are discouraged factors that would
justify a departure only in extraordinary
circumstances. United States v. Pullen,

, 370-72 (7th Cir. 1996).
Child abuse and its resulting emotional
scars are in one sense extraordinary
because not all defendants sentenced for
traveling in interstate commerce with the
intent to have sex with a minor will have
such a history. However, to justify a
departure, discouraged factors such as
these must be "present to an exceptional
degree or in some other way [that] makes
the case different from the ordinary case
where the factor is present." 

(quoting 

). Although
Bautista’s upbringing was undeniably
unfortunate, the physical and emotional
abuse and his resulting personality
disorders are not extraordinary in
comparison with other cases where those
factors are present, see 

(holding that district court would
have abused its discretion in granting
departure based on mental and emotional
conditions linked to beatings and sexual
abuse the defendant suffered as a child
and teenager); see also United States v.
Rivera, 

, 85 (2nd Cir. 1999)
(holding that departure based on mental
and emotional conditions caused by
defendant’s having been beaten and burned
as a youth would have been an abuse of
discretion), even in combination with the
separation from his family that is the
ordinary result of his incarceration and
deportation. Cf. U.S.S.G. sec. 5K2.0, cmt
(noting that a combination of
individually adequate factors may justify
a departure in "extremely rare"
cases)./3

III

  Because we conclude that the district
court abused its discretion in departing
downward from the applicable sentencing
range, we Vacate the sentence and Remand
the case for resentencing.

FOOTNOTES

/1 Without the departure, the sentencing range would
have been 27-33 months.

/2 The label Bautista attaches to this argument,
"cultural assimilation," adds little to this
analysis because it blurs the distinction among
the various considerations that could be involved
when that or similar terms are used. For example,
this case is not like United States v. Lipman,

, 730-31 (9th Cir. 1997), which
considered the effect a defendant’s "cultural
assimilation" to the United States could have on
culpability, and not, as here, its alleged effect
on the harshness of deportation. It is also
distinguishable from those cases considering
whether a defendant’s "cultural heritage" (i.e.,
ethnicity) is ever a proper consideration at
sentencing. See, e.g., 

-
33; United States v. Yu, 

, 953-54 (3d
Cir. 1992) ("cultural differences").

/3 Bautista does not argue on appeal that the judge
believed that she was without authority to grant
a departure based on any alleged effect Bautis-
ta’s status as a deportable alien may have on his
conditions of confinement. However, if the
judge’s rejection of this argument   was based on a
misunderstanding of her authority,   she is free to
reconsider her decision on remand.   See 

; 

.