United States District Court, Eastern District of Pennsylvania
October 10, 2002
UNITED STATES OF AMERICA,
MENDEEP SINGH, DEFENDANT
The opinion of the court was delivered by: Katz, Senior District Judge
MEMORANDUM & ORDER
Before the court is defendant's motion for a downward departure
from the applicable guidelines range pursuant to U.S.S.G. § 5K2.0.
For the reasons discussed below, the defendant's motion is granted
and the defendant is sentenced to twenty-one months imprisonment.
On July 16, 2002, Mendeep Singh pled guilty to one count attempted
illegal reentry after deportation in violation of 8 U.S.C. § 1326(a)
and (b)(2). Mr. Singh attempted to reenter the United States to visit his
dying mother who passed away following the defendant's arrest. The
defendant's criminal history category is IV and the total offense level
is 17.*fn1 Absent a downward departure, the guideline range is 37 to 46
As the Supreme Court explained in Koon v. United States, 518 U.S. 81
(1996), the Sentencing Commission established guidelines to apply only to
a "heartland" of typical cases: "Atypical cases were not `adequately
taken into consideration,' and factors that may make a case atypical
provide potential bases for departure." Id. at 94 (citations omitted). A
court may impose a sentence below the applicable guideline range if it
finds "a mitigating circumstance of a kind, or to a
adequately taken into consideration by the Sentencing Commission in
formulating the guidelines." 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0.
In evaluating a motion to depart downward, a court must first determine
whether the departure factor is forbidden, discouraged, or unmentioned by
the Guidelines. See Koon, 518 U.S. at 94-96; United States v. Iannone,
184 F.3d 214, 226-27 (3d Cir. 1999) (detailing 5K2.0 departure analysis
to be employed after Koon); United States v. Sally, 116 F.3d 76, 80 (3d
Cir. 1997) (same). If the factor is forbidden, the court cannot use it as
a basis for departure.*fn2 See Koon, 518 U.S. at 93. If the factor is
encouraged and not already taken into account by the applicable
guideline, the court may depart on that basis. See id. at 96. If the
factor is discouraged,*fn3 encouraged but already taken into the account
by the applicable guideline, or listed as an appropriate consideration in
applying an adjustment, a court can depart "only if the factor is present
to an exceptional degree or in some other way makes the case different
from the ordinary case where the factor is present." Koon, 518 U.S. at
96. If the factor is unmentioned, "the court must, after considering the
structure and theory of both relevant individual guidelines and the
Guidelines taken as a whole . . . decide whether [the factor] is
sufficient to take the case out of the Guideline's heartland." Iannone,
184 F.3d at 226-27 (citation, punctuation omitted); see also Koon, 518
U.S. at 96.
In the case presently before the court, the defendant attempted to
reenter the United States for a week to visit his dying mother. The
motives behind defendant's illegal activity make this case significantly
different from an ordinary illegal reentry case. Furthermore, Mr. Singh
did not intend to stay in the country indefinitely. According to the
documentation attached to the defendant's motion, Mr. Singh purchased a
round trip ticket which indicates his intention to return to Great
Britain. The defendant arrived in this country on February 12, 2002
— the date of his arrest — and was scheduled to depart on
February 19, 2002. Mr. Singh's mother had brain surgery to remove a
cancerous tumor on February 15, 2002, never regained consciousness, and
died May 1, 2002. While the defendant clearly violated the law, the
purpose behind Mr. Singh's illegal reentry and the brevity of his
scheduled stay indicate a low level of culpability and takes this case
out of the guideline's heartland.
Even though the government acknowledges this court's authority to
depart from the applicable guideline range, the government opposes the
defendant's motion and argues that good motives*fn4 do not provide
a general basis for departure. According to the government, the defendant
is "essentially" seeking a departure due to family ties and
responsibilities. While the government is correct that family ties and
responsibilities are not ordinarily relevant factors in determining
whether to depart from the applicable guideline range, see U.S.S.G.
§ 5H1.6, the guidelines permit departure where a combination of
factors remove a case from the "heartland" even though none of the
factors standing alone would distinguish the case from the norm. See
Koon, 518 U.S. at 113-14. See also United States v. Dominguez, 296 F.3d 192
(3d Cir. 2002) (finding that a defendant was entitled to a downward
departure based on family circumstances given the court's findings of
extraordinary family needs). Furthermore, the Third Circuit has held that
there is no requirement that the circumstances be extra-ordinary in order
to qualify for a downward departure. See Dominguez, 296 F.3d at 195 ("We
therefore reject the government's apparent suggestion that a family
circumstance departure requires circumstances that are not merely
extraordinary, but extra-extraordinary. . . .").
In a non-precedential opinion, the Third Circuit recently held that a
district court did not abuse its discretion by sentencing a defendant
charged with illegally entering the United States below the applicable
guideline range. United States v. Alba, Nos. 01-2510, 01-2907, 2002 WL
522819 (3d Cir. April 8, 2002). In Alba, the district court noted that
the defendant reentered the country to visit his 16 year old son. Because
of the defendant's purpose in reentering the country and the forthright
manner in which he did so, the district court departed downward five
levels and sentenced the defendant to 30 months rather than within the
applicable range of 51 to 63 months. The Third Circuit wrote: "When viewed
collectively and in tandem with the manner of Alba's reentry, these
factors support the District Court's conclusion that this case presented
mitigating circumstances to a degree sufficiently exceptional to warrant
a departure." Alba, 2002 WL 522819 at *5. As in Alba, the circumstances
surrounding Mr. Singh's reentry present mitigating factors sufficiently
exceptional to warrant a downward departure of five levels.*fn5
The purpose behind 8 U.S.C. § 1326 is "to provide a greater
deterrence to illegal entry by a deportee who has earlier committed a
serious crime while in the United States." United States v. Zelaya,
293 F.3d 1294, 1298 (11th Cir. 2002); United States v.
Hernandez-Guerrero, 147 F.3d 1075, 1078 (9th Cir. 1998) (quoting United
States v. Cooke, 850 F. Supp. 302, 306 (E.D.Pa. 1994)). When determining
a particular sentence, a court shall consider the need for the sentence
to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense; to afford adequate
deterrence to criminal conduct; to protect the public from further crimes
of the defendant; and to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment in the
most effective manner.
18 U.S.C. § 3553(a)(2). Twenty-one months
imprisonment is adequate punishment to deter this defendant from
attempting to reenter the country in the future and a longer sentence
would not serve any further rehabilitative purpose. Furthermore, Mr.
Singh poses no threat to society. A sentence within the applicable
guideline range is too high for Mr. Singh's victimless crime of
reentering the United States to see a dying parent.
This court finds that a sentence of twenty-one months imprisonment is
"minimally sufficient to satisfy concerns of retribution, general
deterrence, specific deterrence, and rehabilitation." United States v.
Kikumura, 918 F.2d 1084, 1111 (3d Cir. 1990).
An appropriate Order follows.
AND NOW, this 10th day of October, 2002, it is hereby ORDERED that
the defendants motion for a downward departure is DENIED.
BY THE COURT.