United States v. Aguilar-Ramirez

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-50889
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROBERTO AGUILAR-RAMIREZ,
A/K/A FELIPE VELASQUEZ-RESENDEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
June 22, 2001
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Roberto Aguilar-Ramirez (“Aguilar”) ap-
peals a judgment of sentence denying him a
downward departure under 18 U.S.C.
§ 3553(b). Because the district court did not
realize that it could grant a downward
departure, we vacate and remand for
resentencing in accordance with United States
v. Madison, 990 F.2d 178 (5th Cir. 1993).
I.
Aguilar was indicted and charged with be-
ing in the United States illegally after removal,
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
in violation of 8 U.S.C. § 1326.1 He had been
deported to Mexico five times. He pleaded
guilty, and the presentence report rec-
ommended that his offense level be increased
by sixteen levels because he had been
convicted of an aggravated fel-
onySStheftSSbefore his deportation.
Aguilar objected, because no felony
convictions had been alleged in the indictment.
The objection was overruled. The PSR
calculated that Aguilar’s five convictions2
placed him in criminal history category V. He
moved for downward departure on the ground
that category V overrepresented the
seriousness of his criminal history.
The district court denied the motion but
stated that it was disturbed by the criminal his-
tory category assigned to Aguilar.
Additionally, the court stated that it had
reviewed Madison and found the facts of the
present case directly comparable to those in
Madison.3 When Aguilar’s counsel asked the
court whether it felt that Madison deprived it
of authority to grant departure, the court re-
sponded, “Yes, I do.” Then, the following
exchange occurred:
[Counsel for the Government]: Your
Honor, . . . to make sure that the
appellate record is clear, it seemed that
the court had decided it had the power
and authority to depart, however, felt
constrained under the factual
circumstances by the Fifth Circuit’s
prior precedent, and we just want to
make sure that that’s clear.
THE COURT: I feelSSwell, in order to
make the record clear, I feel that by rea-
son of the Fifth Circuit’s decision, I am
bound by that precedent. And that pre-
cedent dictates that I overrule the
motion for downward departure.
[Counsel for the Government]: And
that’s a consideration of the factual de-
termination the court has made?
THE COURT: Yes.
II.
In enacting the Sentencing Reform Act of
1984, Congress granted the authority “to de-
part from the applicable guideline range if ‘the
court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a de-
gree, not adequately taken into consideration
by the Sentencing Commission in formulating
1 That offense carries a maximum term of two
years’ imprisonment. See 8 U.S.C. § 1326(a). If
the alien is removed after conviction for an ag-
gravated felony, the maximum punishment is in-
creased to twenty years. See 8 U.S.C.
§ 1326(b)(2).
2 Aguilar had been convicted of driving under
the influence, driving with a suspended license,
burglary, petty theft, and illegal re-entry.
3 The district court stated that, in Madison, the
defendant had a serious criminal history and had
been arrested for multiple crimes such as tres-
passing and credit card fraud. Consequently, be-
cause of the strong criminal history, the court in
Madison refused to grant a downward departure.
See Madison, 990 F.2d at 184. The district court
(continued...)
3(...continued)
in the present case stated that it saw no reason why
Aguilar’s criminal history was any less serious
than that in Madison. Consequently, the court
claimed that it was denying the motion for a
downward departure “based on that fact.”

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3
the guidelines that should result in a sentence
different from that described.’” Koon v. Unit-
ed States, 518 U.S. 81, 92 (1996) (citing 18
U.S.C. § 3553(b)). A court may depart
downward “provided that appropriate and
adequate reasons for the departure are
assigned.” Madison, 990 F.2d at 182. A
downward departure may be given if a
defendant’s criminal history category
significantly overrepresents the seriousness of
his criminal history. See U.S.S.G. § 4a1.3
(policy statement); Koon, 518 U.S. at 96. In
deciding whether to depart downward, the
district court has significant discretion. See,
e.g., United States v. Threadgill, 172 F.3d
357, 376 (5th Cir.), cert. denied, 120 S. Ct.
172 (1999).
Generally, we “will not disturb the
sentencing court’s discretionary decision not
to depart downward from the guidelines.”
United States v. Crow, 164 F.3d 229, 239 (5th
Cir.) (citing United States v. Soliman, 954
F.2d 1012, 1014 (5th Cir. 1992)), cert. denied,
119 S. Ct. 2051 (1999) ).4 We will review a
refusal to depart downward only where the
district court mistakenly believed that the de-
parture was not permitted by the guidelines,
where the district court misinterprets the
guidelines, or where the sentence is outside the
range of applicable guidelines. United States
v. McClatchey, 249 F.3d 348, ___ (5th Cir.
2001); see 18 U.S.C. §§ 3742(a).
A court’s erroneous belief that it lacks au-
thority to grant a downward departure consti-
tutes a violation of law, and we may review a
sentence based on such error. See United
States v. Yanez-Huerta, 207 F.3d 746, 748
(5th Cir.), cert. denied, 121 S. Ct. 432 (2000).
If, however, a court refuses to grant a
downward departure based on the facts of a
particular case, we do not have jurisdiction.
See United States v. Lugman, 130 F.3d 113,
114-15 (5th Cir. 1997).
The district court apparently believed it did
not have authority to grant a motion for a
downward departure, because it thought
Madison removed that authority. This directly
contradicts Madison’s holding that a district
court may depart downward “provided that
appropriate and adequate reasons for the
departure are assigned.” Madison, 990 F.2d at
182 (noting that “[e]nunciation of an adequate
explanation for departure from the sentencing
guidelines range is a threshold requirement
mandated by statute”); 18 U.S.C. §§ 3553(c),
3742(e). The court also stated, however, that
it merely was making a factual determination
that Aguilar did not deserve a downward de-
parture from sentencing guidelines. Thus, a
literal reading of the record leads one to
conclude that the court believed that it lacked
the authority, under Fifth Circuit precedent, to
grant a downward departure, but still
considered granting a downward departure
and found one not merited.
The government claims that the court’s
statement that Madison removed its authority
to grant a downward departure should be
viewed “in context of the entire record.” The
government argues that the court really meant
that it could not grant a motion for a
downward departure based on the facts of the
present case. In support of this contention, the
4 Because the district court has substantial dis-
cretion in these matters, the standard of review for
a denial of a motion for downward departure is
abuse of discretion. See Crow, 164 F.3d at 239;
Lugman, 130 F.3d at 115 (citing Koon, 518 U.S.
at 116, and noting that “a district court by de-
finition abuses its discretion when it makes an error
of law, and therefore a unitary abuse of discretion
standard of review is sufficient”).

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4
government cites, among other cases, United
States v. DeCosta, 37 F.3d 5 (1st Cir. 1994);
United States v. Gulley, 992 F.2d 108 (7th
Cir. 1993); United States v. Payne, 81 F.3d
759 (8th Cir. 1996); and In re Sealed Case,
199 F.3d 488 (D.C. Cir. 1999). All of these,
though, are distinguishable.5 None of them
involved the sort of colloquy that occurred
here.
Where, as here, the record is confusing, a
remand is required.6 On remand, the district
court can exercise its authority under Madison
to grant a downward departure, or it can de-
cide not to grant a downward departure based
on its evaluation of the seriousness of Agui-
lar’s criminal history. We express no view of
which decision the court should make.
III.
Aguilar contends that his sentence of
seventy months violates due process. He
claims that § 1326(b)(2) defines a separate
offense, of which a prior aggravated-felony
conviction is an element. He argues that
construing § 1326(b)(2) as a sentence-
enhancement provision would render the
statute unconstitutional. As Aguilar admits,
however, the Supreme Court has rejected
these arguments. See United States v.
Almendarez-Torres, 523 U.S. 224 (1998). So
too has this circuit. See United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)
(noting that Almendarez-Torres governs §
1326(b) actions), cert. denied, 121 S. Ct. 1214
(2001). Because these arguments are
foreclosed by binding precedent, we reject
them.7
5 The government’s use of DeCosta is un-
availing. There, defense counsel never explicitly
mentioned downward departure nor urged addi-
tional factors as a basis for downward departure.
See DeCosta, 37 F.3d at 7-9. Here, by contrast,
counsel for Aguilar directly asked the court wheth-
er it had authority to grant a downward departure
pursuant to Madison.
Also distinguishable is Gulley, which did not
involve two completely contradictory conversations
between the district court and both sides. Rather,
the court in Gulley stated merely that it could not
grant a downward departure because of the facts of
the particular case. See Gulley, 992 F.2d at 111-
12.
In Payne, the court merely stated that it was
unsure that it had the authority to grant a down-
ward departure. See Payne, 81 F.3d at 765. Here,
the court was sure that it did not have such au-
thority, then stated that, because of Aguilar’s
criminal history, it would not grant a downward
departure. Finally, the court stated that Madison
dictated that it overrule Aguilar’s motion, but it did
not say why. Lastly, In re Sealed Case is not on
point, because counsel for the defendant never
requested a downward departure. See In re Sealed
Case, 199 F.3d at 490-91.
6 See United States v. Beckham, 968 F.2d 47,
(continued...)
6(...continued)
54-55 (D.C. Cir. 1992) (noting that the district
court was unaware that authority existed to grant
a downward departure); United States v. Webb,
139 F.3d 1390, 1395 (11th Cir. 1998) (stating that,
because the record was ambiguous, a remand was
required); United States v. Brown, 903 F.2d 540,
544-45 (8th Cir. 1990).
7 Aguilar asserts that “the continuing validity of
Almanedarez-Torres, however, has been cast into
serious doubt” by Apprendi v. New Jersey, 530
U.S. 466 (2000). Because the Court did not
overrule Almendarez-Torres in Apprendi, Almen-
darez-Torres still controls. See, e.g., Agostini v.
Felton, 521 U.S. 203, 237 (1997); Rodriguez de
(continued...)

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IV.
As another circuit has stressed, “sentencing
judges should avoid using the ambiguous lan-
guage that gives rise to appeals . . . . Justice is
better served through clarity on the record.”
In re Sealed Case, 199 F.3d at 491. We
VACATE the judgment of sentence and
REMAND for resentencing in accordance with
Madison.
7(...continued)
Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989). Aguilar’s second argument fails
by default because, as he admits, Almendarez-
Torres still governs. See United States v. Doggett,
230 F.3d 160, 166 (5th Cir. 2000) (stating that
Apprendri did not overrule Almendarez-Torres),
cert. denied, 121 S. Ct. 1152 (2001).

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