United States v. Melvin Garth Ismond

Melvin Ismond appeals the district court's order denying his motion for modification of sentence filed pursuant to Fed.R.Crim.P. 35. The only issue on appeal is whether the district court failed to exercise its discretion by mechanically imposing a two-year sentence for violating 8 U.S.C. § 1326 . (Unlawful entry after having been deported.)

Ismond resided in Vancouver, British Columbia. He had a drinking problem and a history of arrests and convictions related to his drinking problem. On July 21, 1982, Ismond stopped at a local tavern in Canada. One beer led to another, and soon he was drunk. He hailed a taxi and went to Sumas, Washington, the main street of which is adjacent to the United States-Canadian border.

Ismond continued drinking at taverns in Sumas until he was refused service. While waiting for a taxi to take him home, Ismond came to the attention of the Sumas police. The police officers reported to their dispatcher that they intended to put Ismond in a taxi and to instruct the driver to return him to British Columbia. A border patrol agent listening to the police radio recognized Ismond’s name and remembered him as having been deported in 1973. The agent placed an…