United States District Court, S.D. Florida
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
DEFENDANT'S MOTION FOR A SMITH DEPARTURE PURSUANT TO 18
U.S.C. $ 3582(0(2) [DE 6851
WILLIAM MATTHEWMAN UNITED STATES M AGISTRATE JUDGE.
CAUSE is before the Court upon Defendant, Rogerio Chaves
Scotton's Pro Se Motion for a Smith Departure
pursuant to 18 U.S.C. §3582(c)(2) [DE 685]
("Motion") and the Government's Response [DE
718] ("Response"). Defendant has failed to file a
Reply and the time for the filing of a reply has passed. This
matter was referred to the undersigned by the Honorable
United States District Judge Kathleen M. Williams. [DE 708].
Motion seeks a thirteen-month sentence reduction, or
"Smith Departure pursuant to 18 U.S.C. §3582(c)(2),
because "as a deportable alien [Defendant] faces the
prospect of more severe prison conditions than if he was
otherwise a United States Citizen." [DE 685, pg. 2]. The
crux of Defendant's argument is that, because he is a
deportable alien, he has been forced to serve his sentence in
a stricter and higher security prison and he is unfairly
ineligible to "spend the last six months of his sentence
in a Community Correct Center and/or home confinement."
[DE 685, pgs. 5-6]. He also points out that, as a deportable
alien, he faces additional time in immigration custody after
his release from prison, while he awaits deportation. [DE
685, pg. 9]. Defendant equates the additional time in
immigration custody to a "fortuitous increase in the
severity of his sentence" [DE 685, pg. 10] and asserts
that the alleged discrimination against him has resulted in
the "excessive confinement" of Defendant
"which constitutes cruel and unusual punishment."
[DE 685, pg. 11].
The Government's Response
Government filed a Response to Defendant's Motion on June
24, 2019. [DE 718]. In response, the Government asserts that
Defendant's reliance on Smith is misplaced for
three reasons. First, the Government argues that
Defendant's case is procedurally distinguishable from
Smith because there is a significant difference in
the procedural posture of Defendant's case and that of
Smith. Specifically, in United States v. Smith, 27
F.3d 649 (D.C. Cir. 1994), the defendant appealed his
sentence on direct appeal to the DC Circuit Court of Appeals.
Here, the Government points out, Defendant's conviction
and sentence have been affirmed by the Eleventh Circuit Court
of Appeals on direct appeal [DE 594, DE 596], and the Supreme
Court has denied certiorari review [DE633].
the Government notes that 18 U.S.C. § 3582(c) provides
that a district court may only modify an imprisonment
sentence in three circumstances:
(1) Where the Bureau of Prisons has filed a motion and either
extraordinary and compelling reasons warrant a reduction or
the defendant is at least 70 years old and meets certain
other requirements, see 18 U.S.C. § 3582(c)(1)(A);
(2) Where another statute or Federal Rule of Criminal
Procedure 35 expressly permits a sentence modification, see
Id. § 3582(c)(1)(B); or
(3) Where a defendant has been sentenced to a term of
imprisonment based on a sentencing range that was
subsequently lowered by the Commission and certain other
requirements are met, see Id. § 3582(c)(2).
Government argues that Defendant's Motion does not
implicate any of these three circumstances and therefore,
Defendant's Motion "to request a belated downward
departure based on his immigration status simply does not
fall with the ambit of § 3582." [DE 718, pg. 2].
the Government argues that Defendant's reliance on a case
from the D.C. Circuit Court of Appeals is misplaced because
the D.C. Circuit is not binding on this Court. [DE 718, pg.
3]. Instead, the Government points out, decisions from
Eleventh Circuit Court of Appeals are binding on this Court,
and the Eleventh Circuit has held that collateral
consequences related to a defendant's alien status, such
as removability, cannot be a basis for a
downward departure of an imposed sentence. [DE 718, pg. 3].
Analysis and Recommendation
Court has carefully reviewed Defendant's Motion [DE 685]
and the Government's Response [DE 718] and finds
Defendant's Motion to be legally insufficient. Although
Defendant's Motion states that he is seeking relief
pursuant to 18 U.S.C. §3582(c)(2), that statute does not
permit a reduction in a previously imposed sentence solely
because a defendant is a deportable alien. Further,
Defendant's Motion relies entirely on United States
v. Smith, a D.C. Circuit case which is inapplicable here
because it involved a different procedural posture and
because it is not binding precedent in this Court. Finally,
Defendant's Motion lacks merit as the Eleventh Circuit
Court of Appeals has held that Defendant's status as a
deportable alien is not a valid basis for a downward
departure, reasoning that the effect of such a reduction
"would be to favor aliens with more lenient sentences
than citizens of this country who commit the same crime and
have the same criminal history. See United States v.
Maung,320 F.3d 1305, 1308-1309 (11th Cir. 2003);