that guideline."). There is a preponderance of evidence that Mr. Ortega-Mendoza has committed only one prior felony offense, see D.C. Code Ann. § 33-541(a)(1) (1993); see also N.J. Stat. Ann. § 2C:35-10(a)(4) (West 1995); Va. Code Ann. § 18.2-250.1(A) (Michie 1996); id. § 46.2-341.28; D.C. Code Ann. § 33-541(d); that his prior felony was neither a crime of violence nor a firearms offense; and that he was imprisoned for only four months for that offense. Because his aggravated felony is far less serious than most felonies contemplated by the Sentencing Commission in creating the 16-point enhancement, a downward departure is warranted in his case.
4. Section 4A1.3 of the U.S. Sentencing Guidelines provides that a downward departure may be warranted when the defendant's criminal history category significantly over-represents the seriousness of his criminal history or the likelihood that he will commit further crimes. While the magnification of Mr. Ortega-Mendoza's past offense does not fall neatly within this provision for departure for an overstated criminal history--because it is used to compute his present offense level rather than his criminal history category--such a magnification does not fit any other Guideline provision either. Indeed, it constitutes the unusual "mitigating circumstance of a kind . . . 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, and warrants a departure. See United States v. Maul-Valverde, 10 F.3d 544, 547 (8th Cir. 1993); United States v. Hinds, 803 F. Supp. 675, 677-78 (W.D.N.Y. 1992), aff'd, 992 F.2d 321 (2d Cir. 1993) (table). But see United States v. Rios-Favela, 118 F.3d 653 (9th Cir. 1997).
5. Given the significant overstatement of Mr. Ortega-Mendoza's prior "aggravated felony" for attempted distribution of two-tenths of a gram of cocaine, a downward departure to offense level 13 would halve the 16 point enhancement prescribed by U.S.S.G. § 2L1.2(b)(1)(a). The offense level so adjusted would more adequately represent his criminal history, the relative likelihood that he will commit further crimes, and the seriousness of his past aggravated felony. This adjustment of offense level and his category IV criminal history yields a term of imprisonment of 24 to 30 months.
6. Mr. Ortega-Mendoza's entire family lives in the United States, and several members were present at a pre-sentencing hearing on November 13, 1997. It is represented without contradiction that they are leading lawful and useful lives and would offer defendant a strong support network were he to be released into the community.
7. It is reasonably estimated by the United States that it would cost approximately $ 35,000 annually to maintain Mr. Ortega-Mendoza in a federal penitentiary. A reduction in his sentence by 27 months will save the United States approximately $ 78,750.
8. If Mr. Ortega-Mendoza were to serve the minimum sentence provided by the U.S. Sentencing Guidelines, as a deportable alien he would be ineligible for more lenient confinement during the last 10% of his sentence, designed to provide "a reasonable opportunity to adjust to and prepare for [his] re-entry into the community," 18 U.S.C. § 3624(c) (Supp. 1997), and for assignment to a minimum security facility. Such a prospect of "objectively more severe conditions" for defendant, solely due to his status as a deportable alien, warrants a downward departure under U.S.S.G. § 5K2.0. See United States v. Smith, 307 U.S. App. D.C. 199, 27 F.3d 649, 650 (D.C. Cir. 1994).
9. Mr. Ortega-Mendoza has an ongoing history of drug abuse. It appears that his criminal conduct is inextricably linked to this history. To treat his drug habit and thereby materially reduce the risk of future criminality, it is assumed that the Bureau of Prisons will make drug treatment available to him and that he will take advantage of such treatment.
In light of these departure provisions and the findings of fact and law, I have departed downward from the sentence prescribed by the Sentencing Guidelines and sentenced Mr. Ortega-Mendoza to a term of 30 months' imprisonment, approximately six months having been already served, and a subsequent term of three years' supervised release.
date: November 24, 1997
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
© 1992-2004 VersusLaw Inc.