Blame It on the Government: A Justification for the Disparate Treatment of Departures Based on Cultural Ties

• Author: Monu Bedi
• Position: A.B. Dartmouth, M.Phil. Cambridge, J.D. Harvard, Associate Ropes & Gray, LLP
• Pages: 789-824

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BLAME IT ON THE GOVERNMENT: A JUSTIFICATION FOR THE DISPARATE TREATMENT OF DEPARTURES BASED ON CULTURAL TIES

MONU BEDI^[_1]

I. INTRODUCTION

In illegal reentry cases, federal courts routinely downwardly depart from the United States Sentencing Guidelines (“Guidelines”) on the ground of the defendant’s cultural assimilation to the United States.¹

Under this departure, courts impose reduced sentences based on findings that defendants illegally returned to the United States because of their cultural ties to this country.²At the same time, courts generally disfavor departures from the Guidelines relating to crimes motivated by non-American cultural ties, as when defendants argue for lighter sentences because they were motivated to commit the crime by certain non-American cultural mores.³In this article, a departure on cultural assimilation grounds in immigration cases is referred to as an “American assimilation” departure

Copyright © 2010, Monu Bedi

[_1] A.B. Dartmouth, M.Phil. Cambridge, J.D. Harvard, Associate Ropes & Gray, LLP. I would like to thank Judge Swain whose invaluable clerkship taught me the art of legal writing. All opinions and errors are mine and should not be attributed to any other person or organization.

¹See Brian L. Porto, Annotation, Downward Departure Under United States Sentencing Guidelines Based on “Cultural Assimilation”, 6 A.L.R. FED. 2d 317 (2005)

(cataloging the various circuits that allow departure on these grounds); see also discussion infra Part III.

²See, e.g., United States v. Lipman, 133 F.3d 726, 728 (9th Cir. 1998); see also discussion infra Part III.

³See, e.g., United States v. Yu, 954 F.2d 951, 954 (3d Cir. 1992); see also discussion infra Part IV. The term “non-American cultural ties” (or “foreign ties”) is an artificially created term and, for the purposes of this article, refers to cultures originating in or tracing a connection to a country outside the United States. For instance, individuals living in the United States who rely on their unique Mexican or Italian heritage as a reason for committing a particular crime might make a non-American cultural ties argument under my terminology. However, this is not to suggest that these cultures or beliefs are un-American. Quite the contrary, America embodies many different cultures and customs. The term “non-American cultural ties” is simply intended to distinguish these types of cultural defenses (albeit crudely) from those based on American assimilation grounds.

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and a departure based on foreign cultural ties as a “non-American cultural” departure (collectively, the “cultural departures”).

Because the Guidelines are now advisory, federal courts are not restricted to their policy statements or their explicit departure grounds.⁴

However, courts must still consider the Guidelines and their policy statements in crafting a sentence.⁵In fact, the majority of circuit courts have found that a trial court should consult the enumerated departures in the Guidelines as part of its sentencing process.⁶Accordingly, analyzing the Guidelines and related case law are important to understanding the permissibility of the cultural departures in the current sentencing regime.

There is little agreement amongst the few scholars that have addressed the permissibility of both these cultural departures. Some scholars argue

⁴See United States v. Booker, 543 U.S. 220, 245 (2005); Lee D. Heckman, The Benefits of Departure Obsolescence: Achieving the Purposes of Sentencing in the Post-Booker World, 69 OHIO ST. L.J. 149, 169–71 (2008).

⁵Booker, 543 U.S. at 259–60 (noting that under 18 U.S.C § 3553(a), courts must still consider the Guidelines and its policy statements); see also 18 U.S.C. § 3553(a) (2003) (referencing the Guidelines and policy statements as factors to be considered in sentencing).

⁶See Heckman, supra note 4, at 152 n.16 (“The First, Second, Third, Fourth, Fifth, Six, Eighth, Tenth, and Eleventh Circuits all require calculating applicable departures as part of consulting the Guidelines.”); United States v. Wallace, 461 F.3d 15, 32 (1st Cir. 2006); United States v. Jackson, 467 F.3d 834, 837–39 (3d Cir. 2006); United States v. Moreland, 437 F.3d 424, 432–33 (4th Cir. 2006); United States v. McBride, 434 F.3d 470, 474–77 (6th Cir. 2006); United States v. Hawk Wing, 433 F.3d 622, 631 (8th Cir. 2006); United States
v. Calzada-Maravillas, 443 F.3d 1301, 1305 (10th Cir. 2006); United States v. Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005); United States v. Villegas, 404 F.3d 355, 361–62 (5th Cir. 2005); United States v. Selioutsky, 409 F.3d 114, 118–19 (2d Cir. 2005). The majority of trial courts now use a three-part process when fashioning a sentence: first, a court calculates the applicable Guidelines range; next, the court calculates any applicable departures under the Guidelines; finally, it considers all the § 3553(a) factors to determine whether a variance is appropriate. See, e.g., Wallace, 461 F.3d at 32. Some courts have explicitly stated that judges should take into account pre-Booker case law in determining the appropriateness of a departure. See Jackson, 467 F.3d at 839. The Seventh Circuit has explicitly ruled that traditional Guidelines departures are now obsolete. United States v. Johnson, 427 F.3d 423, 426 (7th Cir. 2005). The Ninth Circuit, although siding with the Seventh Circuit with regard to the anachronistic state of formal departures post-Booker, still finds that the “pre-Booker system of departures” should not be ignored, but simply that any such departure should now be interpreted as an exercise of the district court's post-Booker discretion. United States v. Mohamed, 459 F.3d 979, 985–87 (9th Cir. 2006).

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that departures based on any cultural connection should be prohibited.⁷

Others argue that cultural departures should be permissible⁸and it is unfair for courts to grant American assimilation departures, but not non-American cultural departures.⁹Still, another scholar finds this disparate treatment unproblematic, but only puts forth a brief explanation for his conclusion.¹⁰

The purpose of this article is to provide a detailed and compelling justification for this differing treatment. American assimilation departures represent an implicit recognition of the government’s (or more generally, America’s) role in the act of illegal reentry. With non-American cultural departures, America is not to blame or, in the same way, culpable for the defendant’s actions. Thus, the disparate treatment of these cultural departures does not indicate a bias for one culture over the other, but rather recognizes the government’s partial culpability in the offense.¹¹

Part II of this article examines the relevant provisions of the Guidelines that would allow a departure on cultural grounds. Parts III and IV analyze case law associated with the two types of cultural departures. Parts V through VII examine the apparent disparate treatment of these two departures and the scholarship on the subject. By exploring the analogy to entrapment law and the apportionment of culpability, I display that it is consistent for courts to grant American assimilation departures, but not non-American departures.

⁷See, e.g., Kelly Diffily, Protecting the Federal Sentencing Guidelines: A Look at Congress’ Prohibition of Cultural Differences in Federal Sentencing Determinations in the Wake of the 2003 PROTECT Act, 78 TEMP. L. REV. 255, 257 (2005); Elizabeth Martin, All

Men Are (or Should Be) Created Equal: An Argument Against the Use of The Cultural Defense in a Post-Booker World, 15 WM. & MARY BILL RTS. J. 1305 (2007).

⁸See, e.g., Jason F. Carr & Rene L. Valladares, A Renewed Call to the Sentencing Commission to Address Whether Cultural Factors Can Serve as a Basis for Downward Departures, 14 FED. SENT’G REP. 279, 282 (2002); Olabisi Clinton, Cultural Differences and Sentencing Departures, 5 FED. SENT’G REP. 348, 351 (1993).

⁹ See, e.g., Kelly M. Neff, Removing the Blinders in Federal Sentencing: Cultural Difference as a Proper Departure Ground, 78 CHI.-KENT L. REV. 445, 446–49 (2003).

¹⁰See Blair T. Westover, Cultural Assimilation as a Mitigating Factor to Immigration Offenses Under the Federal Sentencing Guidelines, 10 J. GENDER RACE & JUST. 349, 381

(2007).

¹¹See discussion infra Part VII.

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II. TEXTUAL ANALYSIS OF THE GUIDELINES RELATING TO CULTURAL DEPARTURES

The Guidelines do not explicitly refer to culture or cultural assimilation.¹²However, three portions of the Guidelines are relevant to any textual analysis of the permissibility of these cultural departures. First, the policy statement in Section 5H1.10 provides that “Race, Sex, National Origin, Creed, Religion, and Socio-Economic Status” are “not relevant in the determination of a sentence.”¹³Section 5K2.0 then states that these same factors are prohibited as grounds for a downward departure.¹⁴

Second, the policy statement in Section 5H1.6 provides that “family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted.”¹⁵Still, under Section 5K2.0(a)(4), a court may depart downward based on family ties and responsibilities if such characteristics are present to an “exceptional degree.”¹⁶Finally, Section 1B1.4 serves as a catch-all provision and provides, “In determining . . . whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character, and conduct of the defendant unless otherwise prohibited by law.”¹⁷Section 5K2.0 further clarifies this standard by stating, “A departure may be warranted in the exceptional case in which there is present a circumstance that the Commission has not...