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United States v. Tomono

ELR Citation: 28 ELR 21436
Nos. No. 97-3486, 143 F.3d 1401/(11th Cir., 06/15/1998)

The court holds that a district court erred in granting a Japanese reptile importer/exporter who violated the Lacey Act a three-level downward departure from U.S. Sentencing Guidelines based on cultural differences. The court first holds that the circumstances warranting downward departure identified by the district court are not significant enough to take the case out of the heartland of the sentencing guidelines. The fact that the turtles may or may not be endangered is already considered in the applicable guideline. The community respect the importer/exporter enjoys due to his work with reptiles is not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range. The finding that reptiles occupy a unique place in Japanese culture is based on arguments of counsel, which are generally an insufficient basis on which to depart from the guidelines. And, although the importer/exporter was not an expert in customs law, he knew of the U.S. regulations and understood the customs forms.

A dissenting judge argues that the court should affirm the sentence and not encroach on the discretion of the district court.

Counsel for Plaintiff
Elinor Colbourn, Special Ass't U.S. Attorney
U.S. Attorney's Office
80 N. Hughey Ave., Orlando, FL 32801
(407) 648-7500

Counsel for Defendant
Darlene Geiger
Federal Public Defender's Office
80 N. Hughey Ave., Rm. 417, Orlando FL 32801
(407) 648-6338

Before Cox, Black, and Roney, JJ.