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00-3227 U.S. v. Bautista

Minnesota Lawyer//July 16, 2001//

00-3227 U.S. v. Bautista

Minnesota Lawyer//July 16, 2001//

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“[W]e see nothing in the Guidelines that forbids consideration of extralegal consequences that follow a sentence as grounds for a departure. In Koon, for example, the Supreme Court reversed the Ninth Circuit’s holding that career loss following imprisonment could never be relevant to sentencing. 518 U.S. at 110. And because the circumstances urged here (the claimed ‘draconian’ effects of deportation on Bautista) are not prohibited considerations under the Guidelines, we do not rule out consideration of them in appropriate cases.”

“Viewed in the framework of the Guidelines as a whole, and by analogy to the various grounds for departure identified in the Guidelines, we are convinced that a downward departure based on collateral consequences of deportation is justified only if the circumstances of the case are extraordinary, and that it is impossible to conclude that this is such a case. Bautista’s primary argument is that he has lived for half his life in the United States and that deportation will be especially harsh because he will be cut off from his family and home. Departure on this basis would be akin to one based on ‘family ties’ – a discouraged factor that is grounds for departure only in extraordinary circumstances. See U.S.S.G. sec. 5H1.6; United States v. Carter, 122 F.3d 469, 474 (7th Cir. 1997); United States v. Lipman, 133 F.3d 726, 730 (9th Cir. 1998).

Similarly, to the extent that permanent separation from family, job, and the like are the necessary consequences of deportation for all aliens, or at least for those aliens who have made the United States their home, an argument based on these effects comes very close to the deportation-as- punishment theory that we rejected in Guzman. See 236 F.3d at 834.”

Vacated and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Williams, J.

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