United States of America, Cross-Appellee v. Armando Reyes

The Government appeals the district court’s downward departure from the Sentencing Guidelines in sentencing career offender Reyes. It argues that the district court ignored the career, offender guideline' provisions, U.S.S.G. § 4B1.1, by departing from a sentencing range of 210-262 months and setting a sentence of thirty-three months. Reyes cross-appeals the district court’s failure to allow a waiver of jury trial under Fed.R.Civ.P. 23. Defendant argues that the court should have required the Government to articulate a non-racial motive for its refusal to consent to waiver. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 . The jurisdiction of this court rests on 18 U.S.C. § 3742 (b) (Sentencing Guidelines) and 28 U.S.C. § 1291 (Final Judgments).

FACTS

Armando Reyes, a twenty-nine-year-old citizen of Mexico, illegally crossed the border to the United States at the age of fourteen. He has been deported to Mexico four times, the last as the result of a felony drug conviction. (PSR 3). In October 1990, within two months following his most recent deportation, he was arrested by the Portland Police Bureau for selling 2.8 grams of marijuana in the Old Town section of…

dissenting:

I concur with the majority’s rejection of Reyes’ challenge to the Government’s refusal to consent to the waiver of a jury trial. However, I dissent from the majority’s holding that the district court’s grounds for departure from the career offender guidelines were authorized, because the majority both misstates the district court’s rationale for departure and mischaracterizes the state of the law.

I

In reviewing the district court’s downward departure, we “must consider the reasons for departure actually articulated by the sentencing court.” United States v. Montenegro-Rojo, 908 F.2d 425, 427 (9th Cir.1990). During the sentencing hearing, the district court made several statements relevant to his decision to depart downward. The first occurred while the court was questioning the prosecutor about the Government’s position on classifying Reyes as a career offender:

After the district court and the prosecutor discussed the Government’s efforts to eradicate drug dealing in Portland, the district court stated

(Emphasis added). In its written “Findings of Fact Order,” filed three days after the sentencing hearing, the district court stated that it

The district court…

8 F.3d 1379 62 USLW 2355 UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee, v. Armando REYES, Defendant-Appellee, Cross-Appellant. Nos. 92-30030, 92-30059. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 7, 1992. Decided Nov. 3, 1993. Charles F. Gorder, Jr., Asst. U.S. Atty., Portland, OR, for plaintiff-appellant-cross-appellee. Rita J. Radositiz, Asst. Federal Public Defender, Eugene, OR, for defendant-appellee-cross-appellant. Appeal from the United States District Court for the District of Oregon. Before: HUG, FLETCHER and BRUNETTI, Circuit Judges. FLETCHER, Circuit Judge: 1 The Government appeals the district court's downward departure from the Sentencing Guidelines in sentencing career offender Reyes. It argues that the district court ignored the career offender guideline provisions, U.S.S.G. § 4B1.1, by departing from a sentencing range of 210-262 months and setting a sentence of thirty-three months. Reyes cross-appeals the district court's failure to allow a waiver of jury trial under Fed.R.Civ.P. 23. Defendant argues that the court should have required the Government to articulate a non-racial motive for its refusal to consent to…