Paniagua-Ortiz

concurring in part and dissenting in part.

I agree that the district court erred in granting Paniagua-Ortiz a three-level downward departure based upon a combination of factors, and I therefore join in that part of the decision. I disagree, however, with the majority’s conclusion that the district court did not err in granting her a downward departure for “cultural assimilation.” Accordingly, I respectfully dissent from that part of the decision.

In United States v. Lipman, 133 F.3d 726, 730 (9th Cir.1998), we held that a sentencing court has authority under U.S.S.G. § 5K2.0 to consider evidence of “cultural assimilation.” However, we limited the application of this factor to circumstances in which the facts were “sufficient to take the case out of the [relevant] Guideline’s heartland.” Id. We also noted that, to the extent cultural assimilation denotes family and community ties, a district court may depart on the basis of cultural assimilation only in “extraordinary circumstances.” Id.

In my view, this case lacks the sort of “extraordinary circumstances” that justify a downward departure for cultural assimilation. In granting Paniagua-Ortiz a downward departure on this basis,…

MEMORANDUM *

Leticia Paniagua-Ortiz (“Paniagua-Ortiz”) was convicted of illegal reentry and sentenced to twenty-four months imprisonment. The United States appeals the district court’s downward departure in sentencing Paniagua-Ortiz.

We apply de novo review to the district court’s downward departure determinations. See United States v. Phillips, 356 F.3d 1086, 1100 (9th Cir.2004) (holding that the de novo review must be applied “in any case decided by this court subsequent to the PROTECT Act’s effective date of April 30, 2003.”).

The district court did not err in granting Paniagua-Ortiz a downward departure for cultural assimilation, because she had resided in the United States for twenty-seven years; she attended elementary, junior high, and high school in California; she reads and writes English; her father and several siblings are legal residents of the United States; she has two children who are legal residents of the United States; and there are no discrete indications that Paniagua-Ortiz’s illegal reentry was based on purely economic incentives. See United States v. Lipman, 133 F.3d 726, 731 (9th Cir.1998) (holding that “a sentencing court may depart on the basis of…