United States v. Aguilar-Ramirez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-50889 Summary Calendar _______________

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, peals a judgment of sentence denying him a Circuit Judges. downward departure under 18 U.S.C. § 3553(b). Because the district court did not JERRY E. SMITH, Circuit Judge:* realize that it could grant a downward Roberto Aguilar-Ramirez (“Aguilar”) ap- departure, we vacate and remand for resentencing in accordance with United States v. Madison, 990 F.2d 178 (5th Cir. 1993). * Pursuant to 5TH CIR. R. 47.5, the court has I. determined that this opinion should not be pub- lished and is not precedent except under the limited Aguilar was indicted and charged with be- circumstances set forth in 5TH CIR. R. 47.5.4. ing in the United States illegally after removal,

in violation of 8 U.S.C. § 1326.1 He had been court whether it felt that Madison deprived it deported to Mexico five times. He pleaded of authority to grant departure, the court re- guilty, and the presentence report rec- sponded, “Yes, I do.” Then, the following ommended that his offense level be increased exchange occurred: by sixteen levels because he had been convicted of an aggravated fel- [Counsel for the Government]: Your onySStheftSSbefore his deportation. Honor, . . . to make sure that the appellate record is clear, it seemed that Aguilar objected, because no felony the court had decided it had the power convictions had been alleged in the indictment. and authority to depart, however, felt The objection was overruled. The PSR constrained under the factual calculated that Aguilar’s five convictions2 circumstances by the Fifth Circuit’s placed him in criminal history category V. He prior precedent, and we just want to moved for downward departure on the ground make sure that that’s clear. that category V overrepresented the seriousness of his criminal history. THE COURT: I feelSSwell, in order to make the record clear, I feel that by rea- The district court denied the motion but son of the Fifth Circuit’s decision, I am stated that it was disturbed by the criminal his- bound by that precedent. And that pre- tory category assigned to Aguilar. cedent dictates that I overrule the Additionally, the court stated that it had motion for downward departure. reviewed Madison and found the facts of the present case directly comparable to those in [Counsel for the Government]: And Madison.3 When Aguilar’s counsel asked the that’s a consideration of the factual de- termination the court has made?

1 That offense carries a maximum term of two THE COURT: Yes. years’ imprisonment. See 8 U.S.C. § 1326(a). If the alien is removed after conviction for an ag- II. gravated felony, the maximum punishment is in- In enacting the Sentencing Reform Act of creased to twenty years. See 8 U.S.C. 1984, Congress granted the authority “to de- § 1326(b)(2). part from the applicable guideline range if ‘the court finds that there exists an aggravating or 2 Aguilar had been convicted of driving under mitigating circumstance of a kind, or to a de- the influence, driving with a suspended license, gree, not adequately taken into consideration burglary, petty theft, and illegal re-entry. by the Sentencing Commission in formulating 3 The district court stated that, in Madison, the defendant had a serious criminal history and had 3 been arrested for multiple crimes such as tres- (...continued) passing and credit card fraud. Consequently, be- in the present case stated that it saw no reason why cause of the strong criminal history, the court in Aguilar’s criminal history was any less serious Madison refused to grant a downward departure. than that in Madison. Consequently, the court See Madison, 990 F.2d at 184. The district court claimed that it was denying the motion for a (continued...) downward departure “based on that fact.”

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

4 The government claims that the court’s Because the district court has substantial dis- statement that Madison removed its authority cretion in these matters, the standard of review for a denial of a motion for downward departure is to grant a downward departure should be abuse of discretion. See Crow, 164 F.3d at 239; viewed “in context of the entire record.” The Lugman, 130 F.3d at 115 (citing Koon, 518 U.S. government argues that the court really meant at 116, and noting that “a district court by de- that it could not grant a motion for a finition abuses its discretion when it makes an error downward departure based on the facts of the of law, and therefore a unitary abuse of discretion present case. In support of this contention, the standard of review is sufficient”).

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

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).