# United States v. Miguel Sanchez-Rodriguez > Court of Appeals for the Ninth Circuit · November 20, 1998 · 161 F.3d 556 URL: https://www.frixlaw.com/law-library/cases/9491691 ## Case - **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. Miguel SANCHEZ-RODRIGUEZ, Defendant-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** November 20, 1998 - **Citations:** 161 F.3d 556; 98 Daily Journal DAR 11861; 98 Cal. Daily Op. Serv. 8535; 1998 U.S. App. LEXIS 29494; 1998 WL 801855 - **Precedential status:** Published - **Opinion:** Dissent by Trott - **Judges:** Hug, Browning, Schroeder, Fletcher, Reinhardt, Brunetti, Thompson, O'Scannlain, Trott, Kleinfeld, Graber - **Cited by:** 90 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491691 ## How later opinions describe it (automated extraction) - holding that a downward departure may be granted based on a defen- dant’s lost opportunity to serve his federal sentence concurrently with his state sentence due to the delay in commencing federal proceedings after immigration authorities discovered him in state custody - holding that a downward departure may be granted based on a defendant’s lost opportunity to serve his federal sentence concurrently with his state sentence due to the delay in commencing federal proceedings after immigration authorities discovered him in state custody - holding that a sentencing court is not categorically barred from departing downward based on time served in state custody, or on the lost opportunity to serve more of one’s state term concurrently with one’s federal term - holding that a downward departure is permissible based on a defendant's lost opportunity to serve his federal sentence concurrently with his state sentence due to the delay in commencing federal proceedings - concluding that, under the Koon analysis, the district court may consider the nature of the aggravated felony when deciding whether to depart downward from the Guideline's sentencing range ## Opinion text TROTT, Circuit Judge, dissenting, with whom Judges BRUNETTI, O’SCANNLAIN, and KLEINFELD join. The majority’s opinion cuts so much discretionary departure slack for sentencing judges that I fear there is no more rope holding them to the heartland of a guideline. In what amounts to a self-emancipation proclamation, the majority declare that sentencing judges have the discretion to depart from the Guidelines for any reason whatsoever-so long as the feature or factor at play is not explicitly proscribed as a proscribed factor, i.e., race, gender, national origin, creed, religion, socioeconomic status, and economic hardship. The consequences of the majori *565 ty’s concussive holding are made pellucid when one examines the result: A sentencing judge now has the discretion to brush aside a guideline-prescribed enhancement for “any drug trafficking offense,” if the judge (some of whom will be in New York City, others in Pocatello, Idaho) believes a $20 heroin sale to be of “a minor nature.” By so holding with respect to the concept of the heartland of a guideline, the majority repeals the very essence of the Guidelines system, which seeks, in the name of equal protection of the laws, to end federal judges’ history of meting out “ ‘unjustifiably wide ranges of sentences to offenders with similar crimes, committed under similar circumstances.’ ” Koon v. United States, 518 U.S. 81, 92 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996) (quoting S.Rep. No. 98-225, p. 38 (1983)). The thrust of the Guidelines concept is to rein in discretion, but just as wily Odysseus pulled a fast one on the dreaded Cyclops, we fleece Congress by defying its statutes. 1 In the name of “comparability” and “proportionality,” individual sentencing judges may now substitute their ad hoc judgment for the considered judgment of Congress and the Sentencing Commission. Such judgments will vary wildly because of different perspectives of those judges making the decisions. Judges in New York City may believe that a $20 sale of heroin is small potatoes, but in Pocatello, those potatoes may be considerably more significant. This approach reverts to the pre-guidelines problem. For those asking whether in the light of the Guidelines mandatory minimum sentences still have a useful place in sentencing, this case may provide an affirmative answer. So much for Congress’ attempt to accomplish tolerable uniformity. What the majority fails to appreciate is the statutory mandate of 18 U.S.C. § 3553 (b) (1998). This section says: The court shall impose a sentence of the kind, and within the range, referred to in section (a)(4) unless 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. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission. Id. (emphasis added); see also U.S.S.G. § 5K2.0 (1997) (Policy Statement). As noted by the Supreme Court in Koon , this statute means that if a factor or a feature has been expressly or impliedly considered and incorporated in the “heartland” of a guideline, that factor “cannot ” be the basis for a departure. 518 U.S. at 94-96 , 116 S.Ct. 2035 . Departures are permissible only when the “factor is present to a degree substantially in excess of that which ordinarily is involved in the offense.” U.S.S.G. § 5K2.0 (1997) (Policy Statement) (emphasis added). The heartland concept is the glue that provides the uniformity that Congress was intent on creating. It was for this reason-a violation of the heartland concept-that the Court in Koon held that the district court “abused its discretion” in considering Koon’s and Powell’s career loss as a basis for departure. The Court specifically held that: We nonetheless conclude that the District Court abused its discretion by considering petitioners’ career loss because the factor, as it exists in these circumstances, cannot take the case out of the heartland of 1992 USSG § 2H1.4.... It is to be expected that a government official would be subject to the career-related consequences petitioners faced after violating *566 § 242, so we conclude these consequences were adequately considered by the Commission in formulating § 2H1.4. 518 U.S. at 110-11 , 116 S.Ct. 2035 (emphasis added). “Cannot” is not my word, it is the Supreme Court’s. So, a key first step that must be taken whenever a departure is contemplated, a step missing in this case, is to identify the contours of the heartland of the guideline at issue. Then, a sentencing judge must ask-looking only at the Guidelines, the relevant policy statements, and the commentary-whether the factor or feature on which the departure is to be based has been “adequately considered” by the Sentencing Commission in creating that heartland. If the answer is “yes,” then one is dealing with the “ordinary” or typical offense. It is not enough for a sentencing court just to conclude that a certain sale of heroin is of a “minor nature.” Such an approach is not what the word “adequately” authorizes. A court contemplating a departure must expressly conclude that the factor under consideration “is present to a degree substantially in excess of that which ordinarily is involved in the offense.” U.S.S.G. § 5K2.0 (1997) (Policy Statement). To do otherwise is to second-guess the Commission. When we follow the prescribed course in this case, what do we find? First, we find a Guidelines-prescribed 16-level enhancement for an “aggravated felony.” See U.S.S.G. § 2L1.2(b)(2) (1997). When we look within the Guidelines to see what an “aggravated felony” is, we find that the Commission gave us a precise answer: “any drug trafficking crime as defined in 18 U.S.C. § 924 (c)(2),” U.S.S.G. § 2L1.2(b), cmt. n. 7 (1997). This, therefore, is the heartland. If “any” is to mean any, and my friend Judge Reinhardt has been known to say that it does, I conclude from this easy exercise that neither the scope, the perceived gravity, nor the amount of drugs or money involved in the predicate offense can remove a drug trafficking offense from the heartland. Why? Because those factors are subsumed by the word “any.” In other words, the “heartland ” of the enhancement, or the typical ordinary case, is “any drug trafficking offense,” a definition which excludes consideration of the amount of drugs involved. As I said in United States v. Rios-Favela, 118 F.3d 653, 658 (9th Cir.1997), “The Commission was undoubtedly aware of the broad range of drug-trafficking offenses contained in the statutory definitions.” In the precise terms of § 3553(b), Sanchez-Rodriguez’s predicate enhancement offense was “of a kind”-the sale of heroin-and “to a degree”-“any”-explicitly identified by the Commission as deserving of the enhancement, and thus “adequately considered”which to me means unavailable, as explained in Koon , as a basis for departure. The Commission easily could have restricted this enhancement to drug trafficking offenses involving a certain kind or amount of drugs or money, but it did not. It made the cut at “any.” Any way one looks at it, Sanchez-Rodriguez’s $20 heroin sale was a typical, ordinary heartland event. Moreover, and as the government points out, the Commission in fashioning this enhancement specifically excluded certain offenses, such as child pornography and RICO crimes, from the category of “aggravated felonies” under U.S.S.G. § 2L1.2 (1997), even though those particular offenses are considered to be “aggravated felonies” under § 1326(b)(2). Under these circumstances, one can only conclude that the “adequate consideration” test has been satisfied because the factor at issue-the particulars of the sale-is not “present to a degree substantially in excess of that which ordinarily is involved in the offense.” U.S.S.G. § 5K2.0 (1997) (Policy Statement). Some of us may 'believe idiosyncratically that the Commission was not sufficiently discerning, but “dissatisfaction with the available sentencing range or a preference for a different sentence than that authorized by the guidelines is not an appropriate basis for a sentence outside the applicable guideline range.” Id. commentary. Curiously, the majority does not ever tell us what the heartland of this aggravated felony enhancement is, or what the typical ordinary case is, and why. How can we know whether something is not “proportional” or “comparable” to something unless we have the something to compare it to? I challenge the majority to tell us and the district courts in our Circuit what the heart *567 land of this guideline is, because without such a foundation, their conclusion about this departure is necessarily a ship without an ocean. This glaring failure leaves each individual judge with the discretion to do whatever that judge wishes in any given fact situation. Because district court judges rarely know what goes on in other courtrooms, especially in other districts (which explains how we backed into the Guidelines in the first place), Judge A may look at a $20 sale — or even a $100 sale — and see it as minor, Judge B might see that same sale as typical, and Judge C has the discretion to see it in a small rural town as a major event. Without a declaration of the heartland, all of the above are fine. This situation is not what the Supreme Court had in mind when it spoke of an “institutional advantage” in the district courts. I conclude from the practical effect of the majority’s holding that there is no heartland for this guideline, and on appeal, all we have to go by is our sense of whether something is minor, or not. Sentencing Guidelines, “hie sepultus.” I am concerned that the majority’s opinion relegates the heartland of a guideline to a mere way station rather than what it is intended to be-the end of the line. The statement in the Guideline’s comment that judges are not “linguistically bound” does not mean that the articulated heartland does not control. It means only that linguistics do not control if on examination the factor under review has not been adequately taken into consideration. This is the clear meaning of the text of the controlling statute, § 3553(b). If a factor as it appears on a given ease has not been adequately taken into consideration in creating the guideline, then and only then can it be the basis for a departure. To hold otherwise is to slough off the Guidelines under the mistaken view that the considered heartland after all is only linguistic and can be overridden in virtually any case, based on the discretion of each judge. This approach is not what Congress had in mind when it attempted to “provide uniformity, predictability, and a degree of detachment.” Koon, 518 U.S. at 113 , 116 S.Ct. 2035 . Oddly enough, United States v. Mendoza, 121 F.3d 510 (9th Cir.1997), is fully consonant with this approach. 2 In Mendoza , the factor under consideration-a defendant’s absence of knowledge of the purity of the quality of methamphetamine for which he had been the middleman-was not a factor that had been adequately considered in the Guidelines. Thus, this factor could potentially be considered a basis for departure. Moreover, Mendoza explicitly recognized that Koon does not completely abandon any examination of whether the Commission did adequately take into account any particular circumstance. Id. at 514-15. With all respect to the majority, the error that drives its misguided analysis is the misunderstanding of the heartland of a guideline as a “category of factors.” I respectfully believe that the majority’s assertion that in assessing the potential of a factor as a basis for departure, “We must ask only ‘whether the Commission has proscribed, as a categorical matter, consideration of the factor’ at issue” is wrong. What happened to the heartland and to § 3553(b)? To identify the heartland is not tantamount to creating additional forbidden departure factors, or at least that is how I read § 3553(b) in conjunction with Koon . The majority simply cuts the heart out of the heartland. In fact, this case is easier to resolve than the career-loss issue in Koon because here, the plain language of the guideline is explicit, whereas in Koon , the Court had to reach its conclusion by implication: We conclude, then, that a federal court’s examination of whether a factor can ever be an appropriate basis for departure is limited to determining whether the Commission has proscribed, as a categorical matter, consideration of the factor. If the answer to the question is no-as it will be most of the time-the sentencing court must determine whether the factor, as occurring in the particular circumstances, takes the case outside the heartland of the applicable Guideline. 518 U.S. at 109 , 116 S.Ct. 2035 (emphasis added). This is clearly a multiple step pro *568 cess, one that is not satisfied by stopping at the first stage of the inquiry. The abuse of discretion standard announced by Koon does not render appellate review “an empty exercise.” Koon, 518 U.S. at 98 , 116 S.Ct. 2035 . “A district court by definition abuses its discretion when it makes an error of law---- The abuse of discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Id. at 100 , 116 S.Ct. 2035 (citations omitted). In other words, there are legal limits to a sentencing court’s discretion to depart, and those limits-as etched in law by § 3353(b)-are defined by the heartland at issue. Even where a factor is not a categorically impermissible ground for departure, where in the circumstances it does not take the case “outside the heartland of the applicable Guideline,” Koon at 109 , 116 S.Ct. at 2051 , a departure based on the factor is, in those circumstances, an abuse of discretion. Another way to illustrate the mischief wrought by the majority’s approach is to apply it to the new note five inserted in the Guidelines in 1997: Aggravated felonies that trigger the adjustment from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of the imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony. U.S.S.G. § 2L1.2, cmt. n. 5. I suppose that the majority would countenance discretion to depart even though a defendant had more than one previous felony conviction (it wasn’t very serious), involving a firearm (it was just a .22 caliber pistol), and he served more than a year in jail for it (but only 14 months). After all, we are not linguistically bound, and none of these factors is “categorically prohibited,” so the sky, or the cellar, is the limit. 3 Or, suppose that the 16-level enhancement were geared to a “previous felony conviction for the sale of heroin in the amount of $20 or more.” Could a sentencing judge depart on the ground that the precision of the language is just linguistics, and that somehow the particular $20 accommodation sale under review “was not typical”? The proper way to address the factor detaining us in this case is by way of U.S.S.G. § 4A1.3 (1997), which specifically contemplates controlled departures based on over-representation of criminal history, not to determine which variety of “any” heroin sales are not serious or typical. Many sentencing judges will recognize the majority’s opinion as welcome relief from the strictures of the Guidelines and as a restoration to them of much of the discretion they lost almost fifteen years ago. 4 This case, however, is the equivalent of a Boston Tea Party, but without the constitutional right or authority to throw it. The majority’s holding is contrary to the holding of Koon , and we trespass on turf that according to the Constitution belongs to Congress when we make decisions that involve fundamental sentencing policy. As we fell short in our opinion in Koon , we now go overboard in this one, *569 capsizing the Guidelines in the process. Heartland departures, which are supposed to be “extremely rare,” U.S.S.G. § 5K2.0 commentary (1997), may become $20 a dozen-as this ease illustrates. Thus, with all respect for my able colleagues, I dissent. . For those who do not remember the wonderful details of this episode in Homer’s Odyssey, Odysseus and his men escaped the wrath of Polyphemus the Cyclops-first blinded with a burning stake-by seizing his rams up under their shaggy fleeced bellies and then riding them out of the enraged giant’s cave as their master passed his hands along the animals' backs. In the words of Odysseus, "the idiot never noticed that my men were tied under the chests of his own wooly rams.” Odysseus skillfully compounded his deception by convincing Polyphemus that his name was "Nobody,” such that when the Cyclops' fellow giants inquired about the ruckus, he told them that "Nobody” was bothering him. Homer, The Odyssey, E.V. Rieu and D.C.H. Rieu Trans., Penguin Classics, Book 9 (1991). Fortunately for the nation, Article III of our Constitution confers no such inventive powers upon us. . As to the ground of departure based on the lost opportunity to serve concurrent time, I would not reach the issue because the government did not raise it in the district court. . This, of course, raises the question of whether Sanchez-Rodriguez is entitled to consideration under this new guideline. I think not. Notwithstanding the Commission's description of it as "clarifying,” we need not decide whether or not the Commission was correct. The proof of this pudding is in the application: by its own terms Sanchez-Rodriguez is excluded because he has suffered more than one previous conviction of a felony. As Judge Reinhardt said in United States v. Washington, 66 F.3d 1101, 1104 (9th Cir.1995), "Regardless of the Sentencing Commission’s stated intent, an amendment does not apply to crimes committed before its effective date if it changes the substantive law.” . In fact, I wrote a letter on November 9, 1994, to the Chairman of the Sentencing Commission calling the current Guidelines a "cure worse than the disease.” Nevertheless, we are stuck with them until Congress decides otherwise. My letter is reprinted in the Federal Sentencing Reporter and referenced in Kate Stith and Jose A. Cabranes' book Fear of Judging; Sentencing Guidelines in the Federal Courts. See 8 Fed. Sent. R. 189 , 196-99 (1995); Kate Stith and Jose A. Cabranes, Fear of Judging; Sentencing Guidelines in the Federal Courts 196 (1998). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491691. Public record. Not legal advice.