Cubillos

Maria Teresa Charry Cubillos pled guilty to the charge of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (a)(1). The district court departed downward from offense level 24 to level 21, resulting in a 14 month reduction in Cubil-los’s sentence. The district court sentenced Cubillos to 37 months imprisonment. The government appeals the district court’s downward departure from the Sentencing Guidelines. The court based this departure on what it considered to be Cubillos’s increased sentence severity resulting from her status as a deportable alien. She is ineligible for: 1) incarceration at a minimum security facility, and 2) community confinement. Someone not classified as a deportable alien is eligible for these placements. Community confinement can be for up to 10% of the sentence, but no more than six months. The government argues that this is an impermissible basis for departure. Cubillos argues the departure is needed “to avoid unwarranted sentence disparities.”

I.

In Koon v. United States, — U.S.-, 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996), decided after the district court’s decision in this case, the Supreme Court established the appropriate…