## 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 F ELIPE V ELASQUEZ -R ESENDEZ

,



### 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 (“Aguila r ”) app eals 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 being in the United States illegally after removal, * Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion s hould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4.2

in violation of 8 U.S.C. § 1326. 1 He had been

deported to Mexico five times. He pleaded

guilty, and the presente nce report recommended that his offense level be increased

b y sixteen levels because he had been

convicted of an aggravated felony 

### SS theft 

### SS before his deportation.

Aguilar objected, because no felony

convictions had been alleged in the indictment.

The objection wa s overruled. The PSR

calculated that Aguilar’s five convictions 2

placed him in criminal history category V. He

moved for downward departure on the ground

tha t category V overrepresented the

seriousness of his criminal history.

The district court denied the motion but

stated that it was disturbed by the criminal hist o ry category assigned to Aguilar.

Additionally, the court stated that it had

reviewed Madison and found the facts of the

present c ase directly comparable to those in

Madison

. 3 When Aguilar’s counsel asked the court whether it felt that Madison deprived it

of autho rity to grant departure, the court responded, “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 t h at

the court had decided it had the power

and auth o rity to depart, however, felt

constrained under the factual

circumstances by the Fifth Cir cuit’s

prior precedent, and we just want to

make sure that that’s clear.

THE COURT: I feel 

### S

S well, in order to

make the record clear, I feel that by reason of the Fifth Circuit’s decision, I am

bound by that precedent. And that precedent d ictates that I overrul e the

motion for downward departure.

[Co u nsel for the Government]: And

that’s a consideration of the factual determination the court has made?

THE COURT: Yes.

II.

In enact i ng the Sentencing Reform Act of

1984, Congress granted the authorit y “to depart from the applicable guideline range if ‘the

court finds that there exists an aggravating or

mitigating circumstance of a kind, or to a degree, not ade quately taken into consideration

by the Sentencing Commission in formulating 1 That offense carries a maximum term of two

years’ imprisonment. S ee 8 U.S.C. § 1326(a)

. If

the alien is r emoved after conviction for an aggravated felony, the ma ximum punishment is increased to twenty years. S ee 8 U.S.C.

§ 1326(b)(2).

2 Aguilar had been

convicted of driving under

t he 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 seriou s criminal history and had

been arrested for multiple crimes such as trespassing and credit card

fraud. Consequently, because 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.”3

the guidelines that should result in a sentence

different from that described.’” K oon v. United States

, 518 U. S. 81, 92 (1996) (citing 18

U.S.C. § 3553(b)). A court may depart

downward “provided that a p propriate and

adequate reasons for the depar ture are

assigned.” M

adison

, 990 F.2d at 182. A

downward departu re may be given if a

defendant’s criminal history category

significant ly overrepresents the seriousness of

his criminal history. S ee U.S.S.G. § 4a1.3

(policy statement); Koon

, 518 U.S. a t 96. In

deciding whether to depart downward , the

district court has significant discretion. S ee,

e.g., Unite d States v. Threadgill , 172 F.3d

35 7, 376 (5th Ci r.), c ert. denied

, 120 S. Ct.

172 (1999).

Generally, we “will not distu rb the

sentencing court’s discretionary decision not

to depart downward from the guidelines.”

United States v. Crow

, 164 F.3d 229, 239 (5th

Cir.) (cit i ng 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 dep arture was not permitted by the guideli nes,

where the district court misint erprets the

guidelines, or where the sentence is outside the

range of applicable guide l ines. U nited States

v. McClatchey, 249 F.3d 348,

___ (5th Ci r

. 2001); see 18 U.S.C. §§ 3742(a). A court’s erroneous belief that it lacks authority to grant a downward departure constitutes a violation of law, and we may review a

sentence based on such error. S ee United

States v. Yanez-Huerta , 207 F.3d 746, 748

(5th Cir.), cert. denied

, 121 S. Ct. 432 (2000).

If, however, a court re f uses to grant a

downward d e parture based on the facts of a

particula r case, we do not have jurisdiction.

Se e 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 depart u re, because it thought

Madison removed that authority. This directly

contradicts Madison ’s holding t hat a district

court may depart dow nward “provided that

appropriate and adequate reasons for the

departure are assigned.” M adison

, 990 F.2d at

182 (noting that “[e]nunciation of an adequate

explanation for departure from the sentencing

guidelines range is a thresh o ld 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 A guilar did not deserve a downward departure from sentencing guidelines. Thus, a

literal reading of the record l e ads one to

conclude that the court believed that it lacked

the authority, under Fifth Circuit precedent, to

grant a dow nward departure, but still

considered granting a dow nward departure

and found one not merited.

T he 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 mot ion 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 discretion in these matters, the standard of review for

a denial of a motion for downward departure is

abuse of discretion. S ee Cro w

, 164 F.3d at 239;

Lugman

, 130 F.3d at 115 (citing Koon

, 518 U.S.

at 116, and noting that “a district court b y definition abuses its discretion when it makes an error

of law, and therefore a unitary abuse of discretion

standard of review is sufficient”).4

government cites, among other cases, United

States v. DeCosta

, 37 F.3d 5 (1 s t Cir. 1994);

United St ates v. Gulley , 992 F.2d 108 (7th

Cir. 19 93); U

nited States v. Payne

, 81 F.3d

759 (8th Cir. 1996); an d 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 colloqu y that occurred

here.

Where, as here, the record is confusing, a

remand is required. 6 On remand, the dist rict court can exercise its authority under Madison

to grant a downward departure, or i t can decide not to grant a downward departure based

on its evaluation of the seriousness of Aguilar’s criminal history. We express no view of

which decision the court should make.

III.

Aguilar contends that h is sentence of

seventy months violates due process. He

claims t h at § 1326(b)(2) defines a separate

offense, of which a prio r aggravated-felony

conviction is an element. He argues that

construing § 1326(b)(2) as a sen tenceenhancement pro v ision would render the

statute unconstit u tional. As Aguilar admits,

however, the Supreme Court h a s rejected

th ese arguments. S ee United States v.

Almendarez-Torres

, 523 U.S. 224 (1998). So

too has this circuit. S ee 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 argument s are

forec l osed by binding precedent, we reject

them. 7 5 Th e government’s use of D eCosta is unavailing. There, defense counsel never explicitly

mentioned downward departure nor urged additional factors as a basis for do wnward departure.

See DeCosta

, 37 F.3d at 7-9. Here, by contrast,

counsel for Aguilar directly asked the court whether it had authority to grant a downward departure

pursuant to Madison

.

Also distinguishable is G ulley

, which did no t

involve two completely contradicto ry conversations

between the district court and both sides. Rather,

th e court in G ulley 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 a uthority to grant a downward departure. S ee Payne

, 81 F.3d at 765. Here,

the court was sure that it did not havesuch authority , then stated that, because of Aguilar’s

crimin al history, it would not grant a downward

d eparture. Finally, the court stated that M adiso n

dictated that it overrule Aguilar’s motion, but it did

not say why. Lastly, I

n re Sealed Case is not on

point, because c ounsel for the defendant never

requested a downward departure. S ee 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 existe d to grant

a downward dep arture); U nited 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 A

pprendi v. New Jersey

, 53 0

U.S. 466 (2000) . Because the Court did not

overrule Almendarez-Torres in Apprendi

, Almendarez-Torres sti ll controls. S ee, e.g., Agostini v.

Felton

, 521 U.S. 203, 237 (1997); Rodri guez de

(continued...)5 IV.

As another circuit has stressed, “sentencing

judges should avoid using the ambiguous language 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 o f sentence and

REMAND for resentencing in accordance with

Madison

.

7 (...continued)

Qu ijas v. Shearson/Am. Express, Inc

. , 490 U.S.

477, 484 (1989). Aguilar’s second argument fails

by default because, as he admits, Almen darezTorres still governs. S ee United States v. Doggett

, 230 F.3d 160, 166 ( 5th Cir. 2000) (stating that

A p prendri did not overrule Almendarez-Torres ),

cert. denied , 121 S. Ct. 1152 (2001).