United States District Court, S.D. New York
August 19, 2004.
UNITED STATES OF AMERICA,
FELIX ROBLES, Defendant.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Defendant Felix Robles ("Robles") pled guilty before this Court
on April 8, 2004 to one count of knowingly possessing a firearm
affecting interstate commerce after having been convicted of a
crime punishable by a term of imprisonment exceeding one year, in
violation of 18 U.S.C. § 922(g)(1). By letter dated August 11,
2003, Robles filed a motion for a downward departure from the
United States Sentencing Guidelines on the grounds that he is the
sole care giver to his 80-year old father. The Government opposes
the motion. On August 19, 2004, the Court denied Robles's motion
and sentenced him at the lowest end of the applicable Guidelines
range. This Order serves to explain the Court's findings and
basis for its decision.
A Court must evaluate a motion for downward departure to
determine whether there are factors that potentially bring a case outside the "heartland" of cases contemplated by the
Sentencing Guidelines.*fn1 See Koon v. United States,
518 U.S. 81, 95-95 (1996). At the outset, the Court notes that
the recent amendments to the Sentencing Guidelines enacted to
give effect to a Congressional mandate under the PROTECT Act,
see Pub.L. 108-21, 117 Stat 650, 68 Fed. Reg. 60154 (Oct. 21,
2003), place heightened restrictions on granting downward
departures on certain grounds, including on the basis of loss of
care taking or financial support of family members. See
68 Fed. Reg. 60154, 60154 (stating that the amendments are geared to
substantially reduce the incidence of downward departures for,
among other reasons, family ties and responsibilities).
As a general rule, under 18 U.S.C. § 3553(a), the Court must
use the Sentencing Guidelines in effect on the date of
sentencing. However, as the Second Circuit has explained, if the
amendments to the Guidelines result in a harsher sentence for the
defendant than the Guidelines in effect at the time of the
offense, the use of the amended Guidelines violates the ex
post facto clause of the United States Constitution. See
United States v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995). In this case, however, Robles committed the instant offense on
or about December 27, 2003, which is after the October 27, 2003
effective date of the amendments to the Guidelines described
above. Accordingly, because the basis for Robles's motion
implicates the heightened restrictions that are the subject of
the recent amendments to the Guidelines, the Court will apply the
current version of the Guidelines, which employ the more rigorous
scrutiny for these types of sentencing departures. Having
established the applicable Guidelines, the Court considers the
merits of Robles's motion.
After careful consideration of the parties' arguments in light
of the applicable law, the Court finds that a downward departure
is not warranted in this case. Robles seeks a downward departure
on the grounds that he is the primary care giver for his father,
and thus, if Robles is incarcerated, it would have a significant
adverse impact upon his father. Among the responsibilities that
Robles asserts he undertakes on his father's behalf are cooking,
cleaning, and shopping. According to Robles, his father has had
two open heart surgeries, wears a pacemaker, and suffers from
seizures. Robles submitted statements from his brother and cousin
confirming that Robles provides significant care for his father. The Court recognizes that, as Robles claims, the penal
consequences of his actions may cause hardship to his family.
Nevertheless, § 5H1.6 of the Sentencing Guidelines, and the rule
in this Circuit, mandate that family circumstances are ordinarily
not relevant, and may provide justification for a downward
departure only in uniquely exceptional circumstances. See
U.S.S.G. § 5H1.6. The Commentary to this section, as amended by
the PROTECT Act, states that the "loss of caretaking and
financial support is one for which no effective remedial or
ameliorative programs reasonably are available, making the
defendant's caretaking or financial support irreplaceable to
the defendant's family." U.S.S.G. § 5H1.6, Application Note 1(B)
(iii) (emphasis added). Thus, a downward departure based on
family circumstances is appropriate only "where the family was
uniquely dependant [sic] on the defendant's ability to maintain
existing financial and emotional commitments." United States v.
Sprei, 145 F.3d 528, 535 (2d Cir. 1998); see also United
States v. Faria, 161 F.3d 761, 762 (2d Cir. 1998).
The Court finds that the hardships that Robles's father will
face if Robles is incarcerated, while undoubtedly difficult, are
not so extraordinary when compared to the hardships faced by the
elderly parents of any federal incarcerated defendant who is
thereby unable to provide financial and emotional support during this period. Although the
Court is not unsympathetic to the plight of Robles's father and
to the likelihood that he will endure hardship as a result of any
sentence of incarceration that Robles may serve, there is nothing
so uniquely extraordinary in this case to warrant a departure on
Furthermore, the record reflects that Robles has a brother who,
like their father, lives in the Bronx. While Robles's brother
states that he is employed full time and cannot provide
day-to-day care for their father, there is nothing to suggest
that Robles's brother cannot make alternative arrangements to
replace the care that Robles currently provides. Moreover, Robles
has a cousin who attests that Robles has other family members.
Presumably, Robles's cousin and the other members of his family
also can assist in making care giving arrangements for Robles's
father during any period that Robles is incarcerated. While it is
not the Court's intent to trivialize the logistical and financial
effort that may be required in making these arrangements, such
efforts do not provide a basis for a downward departure,
particularly in light of the heightened restrictions imposed by
the amended Guidelines.
A downward departure for extraordinary family circumstances is
not intended to reduce the defendant's culpability. Rather, its rationale is to prevent "wreak[ing]
extraordinary destruction on dependents who rely solely on the
defendant for their upbringing." United States v. Johnson,
964 F.2d 124, 129 (2d Cir. 1992). Because the person claimed to be
most affected by any period of incarceration that Robles may face
is his father and not any minor dependent, the Court finds that
the standard described in Johnson is not met in this
Finally, the Court also denies Robles's motion because of the
overall implications of the relief requested. In order to
effectively address Robles's concerns, the Court would have to
impose a sentence of no incarceration. Such a departure would
represent a minimum nine-level reduction in the offense level.
The Court is not prepared to grant such a substantial departure
under the facts of this case. See U.S.S.G. § 5C1.1; see
also § 5H1.6, Application Note 1(B)(iv) (stating that any
departure for family circumstances should "effectively. . . .
address the loss of caretaking or financial support").
The Court has considered the precedent Robles cites where the
Second Circuit has affirmed downward departures in other
circumstances involving the loss of care giving and other family support. See, e.g., United States v. Huerta,
371 F.3d 88 (2d Cir. 2004); United States v. Galante, 111 F.3d 1029
(2d Cir. 1997); United States v. Alba, 933 F.2d 1117 (2d Cir.
1991). These cases only reinforce the notion that such departures
are intensely fact-sensitive, and the respective district courts
in those cases were presented with different circumstances and a
more flexible standard than that of the PROTECT Act upon which
they based their decisions. As discussed above, the Court has
carefully considered the totality of the circumstances in this
case and concludes that a departure is not warranted.
Accordingly, for the reasons discussed above, the Court denies
Robles's motion for a downward departure.
For the reasons set forth above, it is hereby
ORDERED that the motion of defendant Felix Robles for a
downward departure of the sentencing range applicable under the
United States Sentencing Guidelines is DENIED.