United States of America v. Orlando Vilcapoma

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-3420
___________
UNITED STATES OF AMERICA
v.
ORLANDO VILCAPOMA,
Appellant
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Criminal No. 01-cr-00288
(Honorable Joel A. Pisano)
___________________
Argued April 25, 2002
Before: BECKER, Chief Judge, SCIRICA and RENDELL, Circuit Judges
(Filed May 24, 2002)
LISA C. EVANS, ESQUIRE (ARGUED)
Office of Federal Public Defender
800 Cooper Street, Suite 350
Camden, New Jersey 08102
Attorney for Appellant
RICARDO SOLANO, JR., ESQUIRE (ARGUED)

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2
GEORGE S. LEONE, ESQUIRE
Office of United States Attorney
970 Broad Street, Room 700
Newark, New Jersey 07102
Attorneys for Appellee
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
The issue in this sentencing appeal is whether the defendant was entitled to
downward departures based on "cultural assimilation" and the "totality of the
circumstances."
I.
Orlando Vilcapoma, a Peruvian native, was admitted into the United States in
1973, at the age of three, and became a permanent resident in 1984. In 1990, Vilcapoma
was convicted in New Jersey of distributing heroin within 1000 feet of school property.
Although Vilcapoma was subject to deportation under the Immigration and Nationality
Act, an immigration judge allowed him to remain in the United States based on his long
residence, his attempts at rehabilitation, and his expressions of remorse. In a deportation
appeal, the Immigration and Naturalization Service reversed that decision, holding
Vilcapoma had shown a disregard for the welfare for the United States. Vilcapoma was
deported to Peru in 1995.

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1On May 10, 1996, Vilcapoma was arrested for failing to give a controlled dangerous
substance to the police. Court records indicate he used the alias Pedro A. Torres for this
arrest.
2The parties agreed U.S.S.G. § 2L1.2 provided a base offense level of 8. Sixteen levels
were increased under U.S.S.G. § 2L1.2(b)(1)(A) for conviction for distribution of a
controlled substance, an aggravated felony. Three levels were reduced under U.S.S.G. §
3E1.1(a) and (b)(2) because of acceptance of responsibility and a timely guilty plea.
3The District Court had jurisdiction under 18 U.S.C. § 3231. Vilcapoma does not
appeal the denial for overstatement of criminal history.
3
In January 1996, with the assistance of a paid smuggler, Vilcapoma crossed the
Mexican border into Texas. After a subsequent arrest,1 local authorities informed the INS
that Vilcapoma was present in the United States. On March 23, 2001, INS agents located
Vilcapoma in Perth Amboy, New Jersey, and arrested him for illegal re-entry, a violation
of 8 U.S.C. § 1326. Vilcapoma pled guilty under a one-count information. Under the
plea agreement, the government stipulated Vilcapoma's total offense level was 21.2 The
Pre-Sentence Report recommended imprisonment for forty-six to fifty-seven months.
Vilcapoma did not object to the factual findings or guideline calculations. But he
moved for downward departures based on (1) "cultural assimilation"; (2) overstatement of
criminal history; and (3) the totality of circumstances, including his cultural ties to the
United States and his addiction to narcotics. The District Court denied downward
departures on all grounds, sentencing Vilcapoma to forty-six months in prison. This
appeal followed.3
II.

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4
Vilcapoma contends the District Court wrongly denied a downward departure
based on his "cultural assimilation." If a district court misapprehends its legal authority to
depart under the sentencing guidelines, we exercise plenary review. See, e.g., United
States v. Marin-Castaneda, 134 F.3d 551, 554 (3d Cir. 1998). But if a district court
acknowledges its authority to depart and decides not to do so, we lack appellate
jurisdiction. United States v. Stevens, 223 F.3d 239, 248 (3d Cir. 2000); United States v.
Denardi, 892 F.2d 269, 271-72 (3d Cir. 1989). Here, the District Court observed it could
"engage in a downward departure" for "cultural assimilation," but did not find
Vilcapoma's situation justified one:
[T]he argument is that because [Vilcapoma] was raised in this country, the
Court should overlook what amounts to a life of crime since the age of 14
and give him the benefit of the argument that he has so assimilated into
American culture, that the Court should disregard the applicable
punishments . . . . [W]e have the authority of the District Court to engage in
a downward departure. Under § 5K2.0, we know under United States v.
Koon . . . [that if] the circumstances in a particular case are so different
from what one might consider to be a typical case or within the heartland of
typical cases . . . the court would have the authority to engage in a
downward departure. I recognize the discretion that the District Court has .
. . . to engage in a downward departure. I do not find that the circumstances
in this case would justify it. . . . Mr. Vilcapoma has not . . . demonstrated to
me that . . . [he] became so assimilated . . . so as to not be exposed to a 16-
level increase for his unlawful re-entry. . . . I do not find that Mr.
Vilcapoma presents himself to be so atypical from others who re-enter . . . .
Mr. Vilcapoma returned to the country because he missed his family.

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4The United States Court of Appeals for the Fifth Circuit has held that in an "atypical
or extraordinary case" a downward departure for "cultural assimilation" may be
warranted. United States v. Rodriguez-Montelongo, 263 F.3d 429, 433-34 (5th Cir.
2001). The Court of Appeals for the Ninth Circuit has recognized the authority in dicta.
See United States v. Lipman, 133 F.3d 726, 730-31 (9th Cir. 1998). And the Court of
Appeals for the Eleventh Circuit has hinted at the same authority. See United States v.
Sanchez-Valencia, 148 F.3d 1273, 1273 (11th Cir. 1998) (per curiam) (citing Lipman).
During oral argument, the parties agreed "cultural assimilation" represents a valid
rationale for a sentencing departure under U.S.S.G. § 5K2.0. We agree. In the
appropriate case (e.g., illegal re-entry) and under the appropriate circumstances, "cultural
assimilation" might constitute a deviation from the heartland of typical cases.
5
The District Court recognized it could depart downward but declined to do so. Because
the District Court exercised its discretion, we lack jurisdiction over this matter under 18
U.S.C. § 3742. Denardi, 892 F.2d at 271-72.4
Nonetheless, Vilcapoma insists the District Court improperly focused on the
sixteen-level increase in U.S.S.G. § 2L1.2(b)(1)(A), conflating different analyses for §
2L1.2(b)(1)(A) and § 5K2.0. We disagree. Vilcapoma's "cultural assimilation" argument
focused on several guidelines. During a colloquy, the District Court asked Vilcapoma's
counsel, "So what you're saying is that in formulating the 16-level increase, the
Commissioners failed to take into account the fact that a defendant might have family ties
and cultural assimilation which would render that much of an increase inappropriate?"
Counsel responded, "Yes. But not just the 16-level increase." As noted, the District
Court comprehended its authority to depart for "cultural assimilation," but did not find
Vilcapoma's situation so "extraordinary" to justify a reduction. We see no error.

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6
Vilcapoma also contends the District Court failed to apply the analysis set forth in
Koon v. United States, 518 U.S. 81 (1996). In Koon, the Supreme Court instructed courts
considering departures under U.S.S.G. § 5K2.0 to identify the factor taking the case out
of the "heartland," determine if the guidelines mention the factor, and, unless the factor is
"forbidden," decide it is present "to an exceptional degree." Id. at 95-96. But the District
Court performed a functional equivalent of the Koon analysis. See United States v.
Castano-Vasquez, 266 F.3d 228, 234 (3d Cir. 2001) ("[W]hile a district court is statutorily
obligated to state in open court the reasons for its imposition of the particular sentence, it
is not similarly obligated to explain its refusal to depart downwards.") (quotation and
citation omitted). The District Court considered whether Vilcapoma's situation was
qualitatively different from others facing similar sentences. It met its obligations under
Koon. As the District Court acted within its discretion, we lack appellate jurisdiction.
III.
Vilcapoma also contends he was entitled to a departure under U.S.S.G. § 5K2.0 for
the "totality of the circumstances." As with the prior matter, the issue on appeal is
whether the District Court recognized its authority to depart. See Stevens, 223 F.3d at
247. The District Court said:
[I]n order to engage in . . . any totality of the circumstance argument, one
would have to engage in a discussion as to the court's opinion as to the
statutory maximum sentences that are proscribed along with the guideline
ranges that have obtained . . . . So I do not find that the totality of the
circumstances provides an independent basis for a downward departure . . . .

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7
The government asked for clarification: "Your Honor . . . just to be clear on the record . . .
for this criminal history, the totality of the circumstances is denying these motions, while
realizing the court's authority and possibility to go, downwardly depart, not electing to do
so here." The Court responded, "Of course, I thought I had said that."
Vilcapoma suggests the District Court's "simple agreement" with the prosecutor's
statement "creates ambiguity" as to the Court's understanding, justifying re-sentencing.
We disagree. The District Court recognized its ability to depart, but elected not to do so.
One illustrative exchange with defense counsel demonstrates the Court's recognition:
[Counsel]: Just for clarification, our totality [of] the circumstances
argument goes to each of the other independent arguments. The cultural
assimilation, the criminal history, and if the Court found that either of those
two standing alone was not sufficient, but then taking them into
consideration together, then that would, that would be sufficient for a
departure.
[Court]: I do not find them taken together would justify the departure.
The District Court acted within its discretion in rejecting the downward departure. As
such, we have no appellate jurisdiction. Denardi, 892 F.2d at 271-72.
IV.
For the foregoing reasons we will dismiss the appeal for lack of jurisdiction.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge

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