United States of America v. Jose De Jesus Delgado-Reyes

United States Court of Appeals
For the First Circuit
No. 99-2121
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE DE JESUS DELGADO-REYES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Joseph C. Laws, Jr., Federal Public Defender, and Anita
Hill-Adames, Assistant Federal Public Defender, on brief for
appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, and Thomas F.
Klumper, Assistant United States Attorney, on brief for
appellee.

-- 1 of 9 --

March 29, 2001

-- 2 of 9 --

-3-
COFFIN, Senior Circuit Judge. This sentencing case
arises from the chart-like arrangement of the Sentencing
Guidelines table, which sets penalties for criminal conduct
based both on the nature of the current offense (the offense
level, plotted on the vertical axis) and on the number and
severity of the defendant's prior convictions (the criminal
history category, plotted on the horizontal axis). The district
court concluded that a provision barring relief from an
enhancement to the base offense level (vertical departure) also
cabined its discretion to depart from the assigned criminal
history category (horizontal departure). Because the Guidelines
treat these two calculations separately, we conclude that the
strictures of the offense level guideline do not apply to bar
horizontal departures.
The particular provisions at issue here are Guideline
4A1.3, which permits departures from the criminal history
category if that category "significantly over-represents the
seriousness" of the defendant's prior offenses, and application
note 5 of Guideline 2L1.2, which prohibits downward departures
from the offense level for illegal re-entry after deportation
for an aggravated felony unless a narrow set of conditions are
met. These particular guidelines apply to different axes of the
sentencing calculus. Application note five of Guideline 2L1.2

-- 3 of 9 --

1 Appellant's record would have placed him into criminal
history category III absent the stipulation.
-4-
restricts vertical departures; Guideline 4A1.3 relates to
horizontal departures. The district court declined to consider
departing horizontally under Guideline 4A1.3 based on the
prohibition against a vertical departure under Guideline 2L1.2.
As we explain below, this legal error requires that we remand
the case for re-sentencing.
When defendant-appellant pleaded guilty to illegal re-
entry after deportation for a prior aggravated felony, the
government stipulated to calculating his sentence under criminal
history category (CHC) I because a higher category would be
"overrepresentative" of his prior offenses.1 Invoking Guideline
4A1.3, the government also urged that position at sentencing.
Under CHC I, appellant would have been sentenced within the
range of 37 to 46 months' imprisonment. Notwithstanding the
parties' stipulation, the court sentenced appellant under the
range prescribed by CHC III to 46 months. Coincidentally, the
46-month sentence falls at the top of the CHC I range and at the
bottom of the CHC III range. But the court made it clear, and
the judgment reflects, that the sentence was imposed under the
CHC III range.

-- 4 of 9 --

-5-
In disregarding the criminal history stipulation, the
court relied on Guideline 2L1.2, which governs the calculation
on the other axis, the offense level, for unlawful re-entry
sentences. Under that provision, 16 levels are added to a
defendant's base offense level if the defendant's deportation
was predicated on a conviction for an aggravated felony. See
U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)
(1998). Application note 5 of the guideline authorizes
departures from the 16-level increase if defendant meets three
conditions: (1) he has only one prior felony conviction; (2) it
was not for a crime of violence or firearms offense; and (3) the
term of imprisonment imposed did not exceed one year. Id. §
2L1.2, cmt. n.5 (adopted 1997). Here, appellant did not meet
the third condition because he had been sentenced to more than
a year for his aggravated felony conviction, a drug charge in
New York. The court consequently declined to depart.
As both he and the government argued below, appellant
contends that the court had discretion to depart under Guideline
4A1.3, the Sentencing Commission's policy statement on
departures from the criminal history category, and that the
sentencing court erroneously imported the limitation on offense
level departures into the criminal history category setting. In
other words, appellant asserts that these two guidelines govern

-- 5 of 9 --

-6-
different types of departures: Guideline 2L1.2 controls the
court's discretion to depart vertically from the 16-level
enhancement to the offense level calculation, while Guideline
4A1.3 concerns horizontal departures for all offenses in which
the defendant's criminal history is either under- or, in this
case, over-represented.
We agree with appellant that the prerequisites of
application note 5 govern only the decision to depart on the
vertical axis of the table, i.e., from the 16-level aggravated
felony enhancement in calculating the offense level. Nothing in
that note refers to the criminal history category; by its terms,
note 5 applies only to the offense level calculation under
Guideline 2L1.2. We have previously recognized that the
aggravated felony enhancement of that guideline serves a
distinct punitive purpose (deterrence) apart from the concerns
about recidivism reflected in the criminal history category.
See United States v. Zapata, 1 F.3d 46, 49 (1st Cir. 1993);
accord United States v. Crawford, 18 F.3d 1173, 1179-80 (4th
Cir. 1994). We find no support for extending the explicit,
limited reach of application note 5 to supersede another
provision that governs a different factor in the sentencing
calculation.

-- 6 of 9 --

-7-
Application note 5 of Guideline 2L1.2, therefore, does
not limit a court's discretion to depart horizontally where the
prior record of an illegal re-entry defendant, just like any
other, is over-represented by the assigned criminal history
category. Cf. United States v. Perez, 160 F.3d 87, 89 (1st Cir.
1998) (en banc) (recognizing that "departures for atypical
criminal history are specifically encouraged under U.S.S.G. §
4A1.3"). Thus, a defendant who is not qualified for a vertical
departure because he fails to satisfy the requisites of
application note 5 still may be entitled to a horizontal
departure if the district court finds that the assigned criminal
history category significantly over-represents the seriousness
of defendant's prior convictions.
The government neither quibbles with this reading of
the Guidelines, nor disavows its stipulation, but argues only
that we are without jurisdiction to adjudicate this appeal
because a sentencing court's discretionary refusal to depart is
ordinarily not reviewable. See, e.g., United States v. Baltas,
236 F.3d 27, 39-40 (1st Cir. 2001) (holding that decisions not
to depart horizontally are unreviewable unless the sentencing
court committed legal error in making its determination). The
well-established exception to this general rule, however,
empowers us if the sentencing court did not realize it could

-- 7 of 9 --

2 "If the court of appeals determines that the sentence--
(1) was imposed in violation of law or imposed as a result of
an incorrect application of the sentencing guidelines, the court
shall remand the case for further sentencing proceedings with
such instructions as the court considers appropriate." 18
U.S.C. § 3742(f)(1).
-8-
depart. E.g., United States v. Clase-Espinal, 115 F.3d 1054,
1056 n.2 (1st Cir. 1997) ("Although a refusal to depart is not
ordinarily appealable, the rule is otherwise if, as here, the
district court refused on the ground that it lacked the
authority to depart." (internal citation omitted)). The
government contends that the court was aware of its discretion,
but refused to depart nonetheless.
The transcript of the sentencing hearing belies this
contention. The Judge gave this rationale for not departing:
And this Court does not deem reasonable to depart in
this case because[,] although the note may be
interpreted as only applicable to the offense level
and not the Criminal History Category[,] this Court
deems that note number five of 2L1.2 is a warning to
the Court of downward departing only if those three
elements are present. . . . Hence, the Court cannot
depart and will not depart.
The court's statement that it could not, and thus would not,
depart reflects a view that it lacked authority. Thus, we have
jurisdiction to review that misapplication of the Guidelines.
See 18 U.S.C. § 3742(f)(1).2
The court imposed a sentence at the bottom of what it
thought was the applicable range under CHC III. If the court

-- 8 of 9 --

-9-
had realized it was authorized to depart, and had accepted the
government's stipulation that the CHC I range applied, as it
seemed inclined to do, it could have imposed a sentence of nine
fewer months. The government has stood by its stipulation
throughout the plea and sentencing hearings and does not take a
contrary position in this appeal. Given the court's apparent
refusal to depart based on an erroneous view of the law, we
remand for re-sentencing. Of course, under both the plea
agreement and the Guidelines, the court retains the discretion
to depart, or not, on remand. We express no opinion about the
merits of such a departure. We merely hold that the court is
authorized to do so.
Sentence vacated and remanded for re-sentencing.

-- 9 of 9 --