Professional Documents
Culture Documents
____________________
No. 93-1771
UNITED STATES OF AMERICA,
Appellee,
v.
VICTOR FELIZ-CUEVAS,
Defendant, Appellant.
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert E. Keeton, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
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Aldrich, Senior Circuit Judge,
____________________
and Cyr, Circuit Judge.
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Miriam
Conrad,
Federal
Defender
Office,
on
brief
for
______________
appellant.
Robert E. Richardson, Assistant United States Attorney and
____________________
A. John Pappalardo, United
States Attorney, on brief
for
___________________
appellee.
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____________________
Defendant-appellant Victor
Feliz pleaded
guilty
to
the
indictment.
At
the
district court.
by the
We affirm.
FACTS
FACTS
the document,
acknowledging that
he had
received it.
INS Form I-294
applicable to
the
a violation of 8 U.S.C.
more severe
penalties
penalties generally
that applied
to
aliens, who,
United States
like
In fact,
if he illegally returned
the
to the
imprisonment for up
to 15
years.
Feliz
then
reentered
the
United
States
and
was
-22
arrested.
On
October
23,
1992, the
grand
jury returned
an
1326(a)
subsequent to
from
the
contending
that
departure.
Feliz
result of
maximum
applicable
mitigating
sentencing
circumstance
warranted
him Form
imprisonment; that he
and that,
that as a
that the
imprisonment;
range,
such
I-294, he believed
fifteen years'
guideline
had he
known that,
he
country.
when he decided
returned to
to the
to return unlawfully
he
the United
States had
he known
that the
range was
46-57 months.
The district
court denied
months in prison.
II.
II.
SENTENCING
SENTENCING
-33
him to 46
Feliz
motion for
challenges the
district court's
a downward departure
from the
denial
of his
sentencing range
set
of
returning
unlawfully to
the
country.
that this
Smith
constituted a mitigating
Therefore,
circumstance
that the Sentencing Commission had not taken into account when it
the
legal
authority to
depart
concluded that
from
the
guideline
government
that it
provided a
Guidelines, but it
argues
had the
ground
that
power to
for
the
district
consider whether
departure
from
the
court
the INS
Sentencing
discretion to depart
downward.
Generally, a
exercise
district
its discretion to
guidelines is
court's decision
not appealable.
to refuse
to
the sentencing
No. 93-
1722, slip
States
______
op. at 10
v. Lombardi,
________
(1st Cir.
5 F.3d
Jan. 28,
568,
United
______
Cir. 1993);
United
______
571 (1st
States v. Rushby,
______
______
jurisdiction
attach, however,
may
1994) (citing
where
1991)).
the
"Appellate
district court's
10.
rely on the
United
States.1
district
court
circumstance
district
did
not
refused
the
believe
that justified
court
indicates
that this
a downward
to exercise
reenter the
was
the
departure.
its
that
discretion
kind
Thus,
the
of
the
to depart
support the
that it lacked
the
legal authority to
notice.
We will
on the INS
decision
in light of Smith, No. 93-1722 (1st Cir. Jan. 28, 1994), where we
_____
recently considered this precise issue.
In Smith,
_____
we stated that
giving
misstated
guidelines.
an
the
Id.
__
individual
penalty
at ll.
an unusual
being
for
deported
reentry,
when
We found, however,
that the
situation like
Form
it
I-294,
formulated
the
which
its
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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.
-55
did
not present
should
the
kind of
circumstance
a sentencing
court
antithetical
to
to the purposes of
deter criminal
defendant in
Smith,
_____
conduct.
Id.
__
implicitly admitted
Feliz, like
that he
the
intentionally
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.
motion for a
Therefore,
the district
court's denial
affirmed.
Affirmed.
________
-6-
of Feliz'
its decision is