Filed: Nov. 08, 2002
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 11-8-2002 USA v. Polanco Precedential or Non-Precedential: Non-Precedential Docket No. 02-1512 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Polanco" (2002). 2002 Decisions. Paper 717. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/717 This decision is brought to you for free and open access by the Opinions of the United Stat
Summary: Opinions of the United 2002 Decisions States Court of Appeals for the Third Circuit 11-8-2002 USA v. Polanco Precedential or Non-Precedential: Non-Precedential Docket No. 02-1512 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002 Recommended Citation "USA v. Polanco" (2002). 2002 Decisions. Paper 717. http://digitalcommons.law.villanova.edu/thirdcircuit_2002/717 This decision is brought to you for free and open access by the Opinions of the United State..
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Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
11-8-2002
USA v. Polanco
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-1512
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002
Recommended Citation
"USA v. Polanco" (2002). 2002 Decisions. Paper 717.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/717
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2002 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1512
__________
UNITED STATES OF AMERICA,
v.
BENJAMIN POLANCO,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 01-cr-00590)
District Judge: The Honorable Katharine S. Hayden
__________
Submitted Under Third Circuit LAR 34.1(a)
October 29, 2002
__________
Before: NYGAARD, GARTH, and MICHEL, * Circuit Judges.
(Opinion Filed: November 8, 2002)
__________
OPINION
__________
Michel, Circuit Judge:
*
The Honorable Paul R. Michel, United States Circuit Judge for the Federal Circuit, sitting by
designation.
Defendant-appellant Benjamin Polanco appeals from the District Court's judgment
sentencing him to 41 months' imprisonment. United States v. Polanco, No. 01-cr-00590
slip op. (D. N.J. Feb. 6, 2002). On September 9, 2001 Polanco pled guilty to one count of
an information, charging a violation of 8 U.S.C. §§ 1326(a) and (b)(2), unlawfully entering
the United States. The District Court imposed incarceration pursuant to the United States
Sentencing Guidelines § 2L1.2 based on an offense level of 21, and a criminal history
category of II that made Polanco eligible for a sentence in the range of 41 to 51 months.
The District Court declined to grant a downward departure based on any of the defendant's
four arguments: (1) the ramifications of a "fortuitous increase in the severity of a
deportable alien's sentence," under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0; (2) the
implications of his "extraordinary family ties and responsibilities," under U.S.S.G. § 5H1.6;
(3) the consequences of the "impact on illegal aliens during this country's state of war,"
again under 18 U.S.C. § 3553(b) and U.S.S.G. § 5K2.0; or (4) the effect of the combination
or aggregation of all of these factors, again under 18 U.S.C. § 3553(b) and U.S.S.G. §
5K2.0.
Polanco is a 27 year-old citizen of the Dominican Republic with a common-law
wife and two small children in the Dominican Republic. He entered the United States by
flight from the Dominican Republic to Newark International Airport in Newark, New
Jersey. Because he had been deported in 1997, Polanco was arrested after presenting his
passport and permanent resident card to Customs officials. He claims to have come back
to the United States in spite of the prohibition against his doing so because he was
2
"desperate and would do anything to make money and help [his] family."
Polanco timely appealed the sentencing decision and claims that the District Court
erroneously ruled that it did not have the authority to grant a downward departure based on
any of the three independent bases he presented. Polanco also argues that proper
consideration of each of these bases shows that he deserves such a departure. Presumably
he does so to demonstrate that the vacatur and remand he requests would not be futile. We
will dismiss the appeal from the judgment of the District Court.
I.
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291.
The standard of review we must use, however, is dependant on whether we are asked to
review the District Court's interpretation of the Sentencing Guidelines themselves and, in
particular, whether the District Court has the authority to consider specified, extrinsic
factors for a downward departure from those Guidelines, or the District Court's application
of the Guidelines and the application respecting such factors as justifying or not justifying
a downward departure. We exercise plenary review over only the first. See Koon v. United
States, 518 U.S. 81, 100 (1996) (explaining that "whether a factor is a permissible basis for
departure under any circumstances is a question of law" and does not require deference).
As to the second, we do not have jurisdiction to review the District Court's application of
the discretionary aspects of the Guidelines to deny a downward departure. United States v.
Torres,
209 F.3d 308, 309 n.1 (3d Cir. 2000), cert. denied,
531 U.S. 864 (2000) ("Where,
as here, the District Court understood that it had the ability to depart but refused to do so,
3
we lack jurisdiction to review that refusal."); United States v. Denardi, 892 F.2d 269, 271-
72 (3d Cir. 1989) ("To the extent this appeal attacks the district court's exercise of
discretion in refusing to reduce the sentences below the sentencing guidelines, it will be
dismissed for lack of appellate jurisdiction.").
The government claims that the District Court understood and applied the correct legal
standards and did not abuse its discretion in denying a departure, and that we must,
therefore, dismiss the case for lack of jurisdiction. In contrast, Polanco alleges that the
District Court erred in its rulings on the correct legal standards for what arguments it may
consider for sentencing and therefore that we must vacate and remand. This appeal, thus,
requires a close analysis of exactly what the District Court decided for each of the three
arguments, before we review any decision. Only if we determine that the District Court
ruled that it did not have the authority to consider the defendant's arguments and would have
abused its discretion in denying a departure based on any of the arguments, need we address
whether the District Court did or did not have that authority.
A.
Polanco's first argument is that he is unfairly subject to a fortuitous increase in the
severity of his sentence because of his illegal alien status. Polanco contends that as a
deportable alien, he will have an increased severity of sentence as compared to non-alien
defendants falling under the same provisions of the Guidelines. This is a result of his
ineligibility for release into a half-way house six months earlier than the conclusion of the
sentence imposed by the court (as is allegedly the norm for non-aliens) and the fact that the
4
INS typically detains persons subject to deportation for six months pending their removal
from the United States.
Contrary to what Polanco argues, the District Court did appear to have considered
this argument. Judge Hayden explained at the sentencing hearing that she did not "find
under these circumstances, or as a matter of law, that what the INS is doing with respect to
its functioning detention and ultimate deportation system rises to the level of constitutional
wrong that [she] must both acknowledge and incorporate into [her] sentencing in order to
preserve an equipoise between Mr. Polanco and another sentence daily [sic]." Although
some of Judge Hayden's language suggests that she made a decision about her authority to
consider arguments, rather than applying that authority to make a ruling about the
underlying issue, as a practical matter, her inquiry must have entailed the actual application
of authority. She must have considered Polanco's actual circumstances in order to make a
ruling "under" them and therefore her subsequent language must be understood as a choice
not to incorporate those circumstances into her sentencing decision. The fact that she
made a choice suggests that she was indeed exercising her discretion under U.S.S.G. §
5K2.01 and was concluding that the facts argued by Polanco did not warrant a departure.
Thus, we understand her to have ruled that she had the discretion to depart from the
Guidelines because these circumstances were not taken into account by the Guidelines, and
1
U.S.S.G. § 5K2.0 is a policy statement explaining a judge's discretion to determine
that some factors not enumerated or incorporated into the Sentencing Guidelines are
grounds for granting departures.
5
then to have exercised that discretion in not departing.2 Because Judge Hayden gave it from
the bench and not in any written form, her explanation is by necessity short and not
supported by extensive discussion of the background facts or legal considerations. While a
reviewing court may need to be wary of gaps in explanations of this brevity on some
occasions, we need not do so here. We are confident that Judge Hayden made a carefully
reasoned decision, partly because of the documented clarity and specificity of the
presentation by his lawyer. Polanco submitted a Letter Brief, roughly two single-spaced
pages of which were devoted to presentation of this argument. And counsel for Polanco
spoke at length and with few interruptions on this issue during the November 5, 2001
sentencing hearing. Judge Hayden, thus, had before her a thorough and complete
explanation of the facts concerning this argument.
Judge Hayden did, therefore, consider this argument and then reject it, and assuming
that she did, in fact, have the authority to consider this argument, her ruling is not
appealable. Moreover, even if we could review Judge Hayden's actual ruling on this issue,
we would have to conclude that Judge Hayden in no way abused her discretion by finding
that the "regular mechanism of deportation" (emphasis added) was not, under the
2
Indeed, this understanding is bolstered by Judge Hayden's preliminary discussion in
her sentencing hearing in which she expressly acknowledged and articulated her legal
obligation to take into account the sentencing arguments: "[t]here is discretion. And I
recognize that I do have the authority to depart in certain specialized circumstances. And in
fact, when a heartland argument is made, I must listen and I do listen."
6
circumstances, something outside of the "heartland"3 that should change her sentencing
decision. We, therefore find no reversible error with respect to the District Court's failure
to grant a downward departure based on Polanco's status as a deportable alien.
B.
Polanco's assertion that the District Court erred in not considering his argument for
a downward departure based on family circumstances is equally misplaced. Polanco's
argument below was that a departure was appropriate because the circumstances
surrounding his family ties and responsibilities are so extraordinary as to remove his case
from the "heartland of other cases," as is permitted by precedent. See, e.g., Koon, 518 U.S.
at 98. The circumstances that he relies on are his wife and two children's extreme poverty,
inability to support themselves, lack of other family members who are able to help them,
and, most importantly, the lack of a social services "safety net" in the Dominican Republic.
Taken together, he argues, these circumstances are extraordinary.
In response, after giving a general explanation about how rarely family
circumstances should impact sentencing, Judge Hayden explained specifically that "the
arguments made for Mr. Polanco really reflects [sic] more the fortuitous circumstances of
3
In the atypical case in which a defendants conduct can be said to fall outside of the
heartland of cases, a sentencing court may consider a departure from the Guidelines.
United States v. Iannone, 184 F.3d 214, 226 (3d Cir. 1999). Such departures are
permissible "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.'" U.S.S.G. § 5K2.0 (quoting 18 U.S.C. § 3553(b)).
7
his native country, which my sentencing cannot and should be [sic] not be designed to
ameliorate. The national problems therefore of his native country are not something that I
can consider under the Guidelines, I believe, and that really is what we are talking about
here." We understand this to mean that Judge Hayden found that Polanco's specific family
situation created only the routine kind of suffering, regardless of his family's location; it
was not the exceptional circumstance described in the case law and envisioned by the
Guidelines that would overcome the discouragement by the Guidelines against taking
family ties into account. See U.S.S.G. § 5H1.6. This interpretation of Judge Hayden's
words is consistent with her explanation that the conditions in the Dominican Republic
were not the kind of unique situation which she "should" be ameliorating by a downward
departure. Again, we are comfortable interpreting Judge Hayden's reasoning even though it
does not have extensive development of its basis because the oral presentation by Polanco's
attorney on this point was fairly extensive and the written submission in Polanco's Letter
Brief was very complete.
Because Judge Hayden considered Polanco's argument and then refrained from
granting a departure, her actual ruling is, again, not reviewable. Moreover, even if it was
reviewable, and assuming that Judge Hayden did have the authority to consider this
argument, her application of that authority to find that Polanco's family situation was not so
unique or extreme as to justify a departure was supported by the evidence and reasonable in
comparison to the facts in other cases in which departures were also denied. See, e.g.,
United States v. Sweeting, 213 F.3d 95, 100 (3d Cir. 2000) (reversing the trial court's
8
grant of a departure based on family ties, explaining specifically that "a downward departure
based on family ties and responsibilities should be the exception rather than the rule").
Therefore, we find no reversible error with respect to the District Court's failure to grant a
downward departure based on Polanco's family circumstances.
C.
In reference to the third and final argument, that Judge Hayden erroneously did not
take into account Polanco's argument about state of war in the U.S. after the September 11,
2001 terrorist attacks, combined with the subsequent security measures as justifying a
downward departure in his sentence, we are equally unpersuaded of any error by Judge
Hayden meriting vacatur. Polanco argued that a downward departure was justified because
the deterrence rationale underlying lengthy sentences for illegal aliens was no longer valid
following September 11, 2001 since American borders were effectively sealed, thereby
making return by deported aliens an impossibility. These conditions, Polanco asserts, were
not anticipated by the Sentencing Commission, and therefore they are something a
sentencing judge should take into account independently. An independent consideration
would then show that the punishments were disproportionate, as achieving a deterrent effect
was no longer necessary. In addition, Polanco urged that the money spent incarcerating
deportable aliens would be better devoted to rebuilding, health and safety after September
11, 2001.
Judge Hayden's discussion of this argument suggests, again, that she considered it,
but used her discretion to determine that it did not merit a downward departure. Thus, the
9
same rationale applies as with Polanco's other two arguments for our applying an abuse of
discretion standard of review. Judge Hayden said: "[t]he argument regarding the enhanced
boarder [sic] patrol, I find is entirely too speculative for me to incorporate into my
sentencing consideration . . . [it] would be a stretch that would be entirely inappropriate for
a district court to make." Notably, she specifically says, "I find." We understand her to be
indicating that the argument was considered, but that she has found it to be without merit.
Polanco's opportunity to present his argument on this issue was as complete as it was with
the other two issues and sufficient to engender our confidence that Judge Hayden actually
addressed the argument in spite of her terse explanation.
Therefore, again without deciding whether Polanco's argument regarding the state of the
country after September 11, 2001 was within Judge Hayden's power to consider, we must
dismiss the appeal. Again if we had jurisdiction to review the ruling, we would have to
affirm her ruling denying a downward departure because she in no way abused her
discretion. The logic underlying Polanco's September 11, 2001 arguments is incomplete at
best. We, in fact, see no reason to think that the country's need for deterrence of illegal
entry diminished, and it may be even greater.
II.
For the foregoing reasons, we will dismiss the appeal from the judgment of the
District Court.
10
TO THE CLERK:
Please file the foregoing opinion.
/s/ Paul R. Michel
Circuit Judge
11
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 02-1512
__________
UNITED STATES OF AMERICA,
v.
BENJAMIN POLANCO,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Crim. No. 01-cr-00590)
District Judge: The Honorable Katharine S. Hayden
__________
Submitted Under Third Circuit LAR 34.1(a)
October 29, 2002
__________
Before: NYGAARD, GARTH, and MICHEL, * Circuit Judges.
(Opinion Filed: 2002)
__________
JUDGMENT
__________
This cause came on to be heard on the record before the District Court for the District
*
The Honorable Paul R. Michel, United States Circuit Judge for the Federal Circuit, sitting by
designation.
of New Jersey and was submitted pursuant to Third Circuit LAR 34.1(a) on October 29, 2002.
On consideration whereof, IT IS NOW HERE ORDERED AND ADJUDGED by this
Court that the Polanco appeal from the District Court's judgment of February 6, 2002, be, and
the same is hereby dismissed for want of jurisdiction. All of the above in accordance with the
opinion of this Court.
ATTEST:
_________________________________
Clerk
Date:
2
