The opinion of the court was delivered by: Weinstein, District Judge:
The defendant was arrested in February 1990. He pled guilty to
importation of heroin in April 1990.
He is a permanent resident, having arrived in this country in 1979. He
is married to a permanent resident. He has a one and a half year old
daughter who is a citizen by virtue of having been born in this country.
The defendant served six years in the United States Army — two
years on active duty and four years in the reserves — and was
honorably discharged in 1986. As a consequence of this service, he was
entitled to citizenship upon application. He made no application,
apparently out of ignorance of his rights.
The defendant first appeared for sentence on September 11, 1990. The
sentence was adjourned, and counsel was requested by the court to explore
the possibility of obtaining citizenship for the defendant prior to entry
of a judgment of conviction. Citizenship would have permitted him to
avoid deportation. These efforts have been unsuccessful. As a result,
defendant will be deported as a non-citizen immediately following the
completion of his imprisonment. He will be separated from his family and
friends, probably never to return legally to this country.
The applicable offense level in the sentencing guidelines requires
imposition of a 41 to 51 month period of incarceration, a 3 to 5 year
period of supervised release and a $50 special assessment. As part of the
plea agreement, the defendant agreed not to ask for a downward departure
from the guideline sentence.
A court has an independent power and responsibility to impose the
proper sentence in the exercise of its discretion. See United States v.
Lara, 905 F.2d 599 (2d Cir. 1990) (factors warranting departure within
the discretion of sentencing judge). It may depart downward even without
a motion from the defendant and over the Government's objection where the
guidelines permit. See 18 U.S.C. § 3553 (b); U.S. S.G. § 5K2.0;
United States v. Jagmohan, 909 F.2d 61 (2d Cir. 1990) (upholding downward
departure over objection of government and without motion by defendant);
cf 18 U.S.C. § 3553(e) (requiring motion from Government before court
may depart below statutory minimum); U.S.S.G. § 5K1.1 (requiring
motion from Government before court may depart downward based upon
substantial assistance). An agreement not to request a departure can not
inhibit the exercise of the court's proper sentencing authority. Here,
neither party objected that there was lack of notice of the court's
intention to depart. See Jagmohan, 909 F.2d at 64.
The defendant has already served fifteen months in prison. His valuable
service to the country in the armed forces, the unfortunate circumstances
under which he failed to obtain his right to citizenship despite this
service, and what will probably be the permanent separation from wife and
his American born child all present "mitigating circumstances of a kind,
or to a degree, not adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result in a sentence
different from that described." 18 U.S.C. § 3553 (b); U.S.S.G. §
5K2.0; see also United States v. Perez, 756 F. Supp. 698 (E.D.N Y
A downward departure is warranted. 1. Defendant is sentenced to time
served, a five year term of supervised release and a $50 special
assessment. He shall be made available to the Immigration and
Naturalization Service immediately for deportation.
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