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”) appeals 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 Statesillegally after removal,

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. 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 presentence report recommended that his offense level be increased

by sixteen levels because he had been

convicted of an aggravated felonySStheftSSbefore 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 history 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 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 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 reason of the Fifth Circuit’s decision, I am

bound by that precedent. And that precedent dictates that I overrule the

motion for downward departure.

[Counsel for the Government]: And

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

THE COURT: Yes. 

II.

In enacting the Sentencing Reform Act of

1984, Congress granted the authority “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 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 aggravated felony, the maximum punishment is increased 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 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.’” Koon v. United 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 (5thCir. 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 departure 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 authority to grant a downward departure constitutes 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

(5thCir.), 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 departure 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 discretion 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 definition abusesits 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 (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 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 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 sentenceenhancement 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 unavailing. There, defense counsel never explicitly

mentioned downward departure nor urged additional 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 whether 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 downward departure. See Payne, 81 F.3d at 765. Here,

the court was sure that it did not have such authority, 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 (11thCir. 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 assertsthat “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, Almendarez-Torres still controls. See, e.g., Agostini v.

Felton, 521 U.S. 203, 237 (1997); Rodriguez de

(continued...)
5

IV.

As another circuit hasstressed, “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 of sentence and

REMANDfor 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, AlmendarezTorres 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).