United States v. Lakeesha Lahoud , 178 F. App'x 926 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 27, 2006
No. 05-13316 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20807-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAKEESHA LAHOUD,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 27, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Lakeesha Lahoud appeals her 70-month sentence imposed following her
guilty plea to conspiring to possess with intent to distribute cocaine, marijuana, and
MDMA (ecstasy), 21 U.S.C. § 841(a)(1). On appeal, Lahoud argues that the
district court incorrectly believed that it did not have the authority to grant a
downward departure on the basis of the collateral consequences of her alienage.
Lahoud reads our decision in United States v. Veloza, 83 F.3d 380 (11th Cir.
1996), overruled on other grounds, United States v. De Varon, 175 F.3d 930 (11th
Cir. 1999) (en banc), to allow for such a departure under extraordinary
circumstances, which she claims to be present in her case. Lahoud asserts that if
the district court believed it had any discretion at all regarding a downward
departure on the basis of the collateral consequences of alienage, then it would not
have mentioned Veloza during the sentencing hearing.
We do not have authority to review a district court’s denial of a downward
departure from the advisory guideline range unless the district court incorrectly
believed that it lacked the authority to do so. United States v. Winingear, 422 F.3d
1241, 1245–46 (11th Cir. 2005). We review de novo whether a district court erred
in concluding that it lacked discretion. United States v. Hansen, 262 F.3d 1217,
1255 (11th Cir. 2001).
In Veloza, we held that an alien’s ineligibility to serve her sentence in a
minimum security facility and ineligibility for a halfway house near the end of her
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sentence did not justify a downward departure. Veloza, 83 F.3d at 382. We
adopted the rationale of United States v. Restrepo, 999 F.2d 640 (2d Cir. 1993),
where the Second Circuit declined to hold that extraordinary collateral
consequences of alienage could never be a grounds for a downward departure, but
did hold that unavailability of preferred conditions of confinement, the possibility
of an additional period of detention pending deportation, and the effect of
deportation as banishment from the United States and separation from family did
not justify a downward departure. Veloza, 83 F.3d at 382. We have since
criticized Veloza’s dicta regarding the possibility that extraordinary collateral
consequences of alienage might be grounds for a downward departure. United
States v. Maung, 320 F.3d 1305, 1308 (11th Cir. 2003). In Maung we noted that,
“[n]o decision to which we have been directed, or that we have found, has upheld a
downward departure based upon collateral consequences related directly or
indirectly to the defendant's status as an alien.” Id. We reversed such a departure in
the Maung case itself.
The district court correctly stated that “the collateral consequences that a
defendant faces because of being a deportable alien generally do not support a
departure.” It then explained, as a precautionary matter: “To the extent that Veloza
allows some room for a departure in a particular case, I exercise my discretion in
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this case and decide not to depart.” We are without the authority to review this
exercise of discretion.
AFFIRMED.
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