USCA1 Opinion
February 17, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1771
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR FELIZ-CUEVAS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
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Before
Torruella, Circuit Judge,
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Aldrich, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Miriam Conrad, Federal Defender Office, on brief for
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appellant.
Robert E. Richardson, Assistant United States Attorney and
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A. John Pappalardo, United States Attorney, on brief for
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appellee.
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TORRUELLA, Circuit Judge. Defendant-appellant Victor
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Feliz-Cuevas ("Feliz") was indicted in the United States District
Court for the District of Massachusetts for unlawful reentry into
the United States following deportation, in violation of 8 U.S.C.
1326. Feliz pleaded guilty to the indictment. At the
sentencing hearing, Feliz moved for a downward departure from the
applicable sentencing guideline range, which was denied by the
district court. Smith now appeals this denial. We affirm.
I. FACTS
I. FACTS
On February 7, 1992, the Immigration and Naturalization
Service ("INS") ordered Feliz deported to the Dominican Republic.
On February 11, 1992, immigration officials gave Feliz INS Form
I-294, which advised Feliz that:
any deported person who within five years
returns without permission is guilty of a
felony. If convicted he may be punished
by imprisonment of not more than two
years and/or a fine of not more than
$1,000.00.
Feliz read and signed the document, acknowledging that he had
received it.
INS Form I-294 only set forth the penalties generally
applicable to a violation of 8 U.S.C. 1326, but did not state
the more severe penalties that applied to aliens, who, like
Feliz, had been convicted of an aggravated felony. In fact, the
penalty which Feliz would face if he illegally returned to the
United States without permission was imprisonment for up to 15
years.
Feliz then reentered the United States and was
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arrested. On October 23, 1992, the grand jury returned an
indictment charging Feliz with a violation of 8 U.S.C. 1326(a)
and 1326(b)(2), illegal reentry after deportation subsequent to
being convicted of an aggravated felony. Feliz pleaded guilty on
March 16, 1993.
With respect to sentencing, Feliz moved for a downward
departure from the applicable sentencing guideline range,
contending that a mitigating circumstance warranted such a
departure. Feliz submitted an affidavit which stated that as a
result of the INS giving him Form I-294, he believed that the
maximum penalty for reentering the United States was two years'
imprisonment; that he did not know that the maximum penalty was
fifteen years' imprisonment; and that, had he known that, he
would not have returned to the United States.
At the sentencing on May 26, 1993, the district court
held an evidentiary hearing to determine whether Feliz had relied
on INS Form I-294 when he decided to return unlawfully to the
country. Feliz testified that he relied on the INS form for his
belief that he faced no more than two years' imprisonment if he
reentered the United States. Feliz also testified that he would
not have returned to the United States had he known that the
maximum penalty he would face was 15 years, or that the guideline
sentencing range was 46-57 months. The district court denied
Feliz's motion for a downward departure and sentenced him to 46
months in prison.
II. SENTENCING
II. SENTENCING
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Feliz challenges the district court's denial of his
motion for a downward departure from the sentencing range set
forth in the Sentencing Guidelines. Feliz argues that by virtue
of INS Form I-294, the government erroneously informed him of the
consequences of returning unlawfully to the country. Smith
submitted an affidavit and testified that he relied upon the INS
form when he decided to return to the United States. Therefore,
Feliz contends that this constituted a mitigating circumstance
that the Sentencing Commission had not taken into account when it
formulated the guidelines, and it warranted a downward departure.
Feliz argues that the district court erroneously concluded that
it lacked the legal authority to depart from the guideline
sentencing range based on the INS notice.
The government argues that the district court
understood that it had the power to consider whether the INS
notice provided a ground for departure from the Sentencing
Guidelines, but it refused to exercise its discretion to depart
downward.
Generally, a district court's decision to refuse to
exercise its discretion to depart downward from the sentencing
guidelines is not appealable. United States v. Smith, No. 93-
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1722, slip op. at 10 (1st Cir. Jan. 28, 1994) (citing United
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States v. Lombardi, 5 F.3d 568, 571 (1st Cir. 1993); United
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States v. Rushby, 936 F.2d 41, 42 (1st Cir. 1991)). "Appellate
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jurisdiction may attach, however, where the district court's
decision not to depart is based on the court's view that it lacks
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the legal authority to consider a departure." Smith, slip op. at
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10.
As a preliminary matter, the record seemingly indicates
that the district court concluded as a factual matter that Feliz
did not rely on the INS notice when he decided to reenter the
United States.1 Moreover, the record indicates that the
district court did not believe that this was the kind of
circumstance that justified a downward departure. Thus, the
district court refused to exercise its discretion to depart
downward, and this decision is not appealable.
The record, however, could also be read to support the
conclusion that the district court believed that it lacked the
legal authority to depart under the Guidelines based on the INS
notice. We will therefore review the district court's decision
in light of Smith, No. 93-1722 (1st Cir. Jan. 28, 1994), where we
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recently considered this precise issue.
In Smith, we stated that we did not believe that the
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Sentencing Commission considered an unusual situation like the
INS giving an individual being deported Form I-294, which
misstated the penalty for reentry, when it formulated its
guidelines. Id. at ll. We found, however, that this situation
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1 Feliz also argues that the district court's denial of Feliz's
motion for a downward departure resulted from an error of law
regarding the standard to be used in determining whether Feliz
reasonably relied upon INS Form I-294. Feliz' estoppel argument,
which involves the question of whether Feliz' reliance was
reasonable, is inconsequential in light of our decision that
Feliz' reliance on Form I-294 was simply not the kind of
circumstance that could warrant a downward departure.
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did not present the kind of circumstance a sentencing court
should consider to support a downward departure, because it was
antithetical to the purposes of the sentencing system, which is
to deter criminal conduct. Id. at 11-12. Feliz, like the
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defendant in Smith, implicitly admitted that he intentionally
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committed a felony.
The sentencing court cannot countenance
[the defendant's] purposeful decision to
engage in felonious conduct, and grant
him the benefit of a downward departure,
because [the defendant] understood the
penalty he would face to be relatively
minor. Rather, the sentencing court was
required to sentence [the defendant]
within the applicable sentencing range,
so that [the defendant] and others would
be deterred from illegally reentering the
country in the future.
Id. at 12. Therefore, the district court's denial of Feliz'
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motion for a downward departure was proper, and its decision is
affirmed.
Affirmed.
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