United States of America v. Dorian Tabares

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-2117
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UNITED STATES OF AMERICA
v.
DORIAN TABARES,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 01-413)
District Judge: The Honorable Faith S. Hochberg
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 12, 2002
Before: FUENTES and STAPLETON, Circuit Judges and O’KELLEY*, District Judge
(Opinion Filed: December 23, 2002)
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* The Honorable William C. O’Kelley, United States District Judge for the Northern
District of Georgia, sitting by designation.
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OPINION OF THE COURT
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FUENTES, Circuit Judge
On October 22, 2001, Appellant Dorian Tabares pled guilty to a one-count
information charging him with violating 8 U.S.C. 1326(a) and (b)(2) by re-entering the
United States after he was deported subsequent to being convicted of an aggravated felony.
In the Presentence Investigation Report, the Probation Office assigned Tabares a total offense
level of 21 and a criminal history category of II, which placed him in a sentencing range of
41-51 months. At sentencing on April 5, 2002, Tabares moved for a downward departure
on the basis that, as a result of his alien status, he would suffer a fortuitous increase in t
severity of his sentence. The District Court declined to depart downward. Tabares filed a
timely Notice of Appeal.
The District Court exercised jurisdiction over this case pursuant to 18 U.S.C. 3231.
We have appellate jurisdiction pursuant to 28 U.S.C. 1291. We review a district court’s
decisions concerning departures from the Sentencing Guidelines for an abuse of discretion.
See, e.g., United States v. Abuhouran, 161 F.3d 206, 209 (3d Cir. 1998) (citing United States
v. Sally, 116 F.3d 76, 78 (3d Cir. 1997)). However, "[w]e lack jurisdiction to review a
refusal to depart downward when the district court, knowing it may do so, nonetheless
determines that departure is not warranted." United States v. McQuilkin, 97 F.3d 723, 729
(3d Cir. 1989) (citing United States v. Denardi, 892 F.2d 269, 272 (3d Cir. 1989)).
As pertinent to this appeal, Tabares argued at the sentencing hearing that his sentence
would be fortuitously increased due to his alien status (1) because he would serve an
additional six months in INS detention and (2) because, as a deportable alien, he was

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ineligible for early release programs for which non-alien defendants with the same offense
level and criminal history category were eligible. On appeal, Tabares asserts that the Distri
Court did not take into consideration the additional six months incarceration he would be
subjected to due to his ineligibility for early release and focused only on the increased
severity of his sentence due to the six months he would serve in INS custody.
Our review of the record indicates that the District Court recognized its discretion to
depart downward. The Court explained:
I acknowledge that I have the authority to depart in this case. .
. . . But I’m am [sic] exercising my discretion not to depart. I
will consider your arguments as to where I sentence [Tabares]
within the range.
App. at 43-44. The record also shows that the District Court considered Tabares’ argument
that a downward departure was warranted because his ineligibility for early release would
fortuitously result in a more severe sentence being imposed on him than would be imposed
on a similarly situated non-alien. After defense counsel advanced Tabares’ early release
argument, the following colloquy ensued:
THE COURT: He can’t get released because he has to be
deported.
[DEFENSE COUNSEL]: Yes. But he’s getting 12 months more
than everybody else at [an offense level of] 21.
THE COURT: I understand.
App. at 34. When sentencing Tabares, the District Court explained the reasons underlying
its denial of the requested downward departure:
I don’t depart because I don’t find that this case falls within
United States versus Smith. In that case the courts are told to
depart only when they are persuaded that the greater severity, to
the extent one considers this severity, is undeserved.
In this case, whenever a defendant illegally re-enters a country
after having been deported once and told that he is legally barred
from re-entering, he certainly knows and deserves administrative
deportation proceedings after the illegal re-entry. So I don’t find
that it falls within Smith.
I also don’t find that it falls outside the heartland of the other re-
entry cases. There’s simply nothing about Mr. Tabares’ case
that is different from all of the unlawful re-entry cases we are
seeing now.
App. at 44.
Because it is clear from the record that the District Court carefully considered all
arguments advanced by Tabares in support of his motion for downward departure and acted
well within its discretion in denying the relief sought, the District Court’s decision is not
reviewable by this Court. The instant appeal is therefore dismissed for lack of appellate
jurisdiction.
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By the Court,
/s/ Julio M.
Circuit Judge

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