United States v. Smith

United States v. Smith

Opinion

 [*650]  WILLIAMS, Circuit Judge: This case poses the question whether a sentencing court may depart below the range indicated by the Sentencing Guidelines where the defendant, solely because he is a deportable alien, faces the prospect of objectively more severe prison conditions than he would otherwise. We hold such departures permissible.

Renford George Smith, a Jamaican citizen, entered the United States illegally in 1991. The following year he was [**2]  arrested and charged with unlawful possession of five grams or more of cocaine base with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii), and pleaded guilty. The district court sentenced him to 70 months imprisonment, the very bottom of the range indicated by the Sentencing Guidelines. He appeals because the court, though expressing a desire to reduce his sentence, declared, "I really don't see any basis for departure." ¹ [**4]  Smith claims such a ground, arguing that in two ways his status as a deportable alien will--adventitiously, as he sees it--subject him to harsher conditions than an otherwise identical citizen. First, his ] status as a deportable alien renders him  [*651]  almost certainly ineligible for the benefits of 18 U.S.C. § 3624(c), which directs the Bureau of Prisons, to the extent practicable, to assure that prisoners spend part of the last 107 of their sentences (but no more than six months) under conditions--possibly including home confinement--that will "afford the prisoner a reasonable opportunity to adjust to and prepare for his re-entry into the community". Bureau of  [**3]  Prisons regulations bar non-U.S. citizens from assignment to a Community Corrections Center except in what appear to be rare circumstances. See Federal Bureau of Prisons, Program Statement 5100.04: Security Designation and Custody Classification Manual, Ch.2-9 (June 15, 1992). ² More important, Bureau of Prisons policy prevents him from being assigned to serve any part of his sentence in a minimum security prison, subject to the same exceptions as community confinement. Id. at Ch.2-9. ³ Whether such differences in probable conditions of confinement can ever justify a downward departure presents a threshold question of law that we decide de novo. United States v. Williams, 299 U.S. App. D.C. 20, 980 F.2d 1463, 1466 (D.C. Cir. 1992).

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