IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Summary Calendar No. 00-50894 USDC No. P-00-CR-119-1-F

UNITED STATES OF AMERICA, Plaintiff-Appellant,

versus MARTIN LOPEZ-AYALA, also known as Miguel Herrera-Torres,

also known as Miguel Angel Herrera-Torres, Defendant-Appellee;

______________________ Consolidated with No. 00-51161 USDC No. P-00-CR-235-ALL-F

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellant,

versus JAVIER CABRALES-LOPEZ, Defendant-Appellee;

____________________ Consolidated with No. 00-51163 USDC No. P-00-CR-239-ALL-F

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellant,

versus CARMEN ORTIZ-BERNAL, Defendant-Appellee;No. 00-50894 c/w Nos. 00-51161 & 00-51163 & 00-51183 & 00-51185

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* Pursuant to 5 TH C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. ____________________ Consolidated with No. 00-51183 USDC No. P-00-CR-278-ALL

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellant,

versus HECTOR OCTAVIO MENDOZA-GALLARDO, Defendant-Appellee;

____________________ Consolidated with No. 00-51185 USDC No. P-00-CR-234-ALL

_____________________ UNITED STATES OF AMERICA, Plaintiff-Appellant,

versus ALBERTO ZAPIEN-BACA, Defendant-Appellee.

-------------------- Appeals from the United States District Court for the Western District of Texas

-------------------- July 3, 2001 Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: * The United States appeals the district court’s downward departure in sentencing in these five consolidated appeals. Each defendantNo. 00-50894 c/w Nos. 00-51161 & 00-51163 & 00-51183 & 00-51185

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1 Apprendi v. New Jersey , 530 U.S. 466 (2000). pleaded guilty to an indictment charging illegal reentry, and the
indictment neither alleged a prior aggravated felony conviction nor
referenced subsection (b)(2) of 8 U.S.C. § 1326. The Government argues that the district court abused its discretion in departing downward from the relevant guideline range and sentencing each of
the five defendants to two-years’ imprisonment. We vacate the sentences and remand for resentencing.

Mar tin Lopez-Ayala argues that the Government failed to preserve its objection, and therefore, review is for plain error.

Our review of the appellate recor d reveals that the Government’s objec tion to application of A pprendi , 1 including opposition to a
downward departure, was sufficiently raised in the district court.
While downward departures are reviewed for an abuse of discretion, see United States v. Hemmingson , 157 F.3d 347, 360 (5th
Cir. 1998), district courts may depart downward from the applicable guideline range only when they find an “aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulat i ng the guidelines.” 18 U.S.C. § 3553(b); U.S.S.G. § 5K2.0, p.s. “When a court finds an atypical case, one to which a particular guideline linguistically applies but [in which] conduct significantly differs
from the norm, the court may consider whether a departure is warranted.” U.S.S.G. Ch. 1, Pt. A 4(b), p.s.; see Koon v. United

States , 518 U.S. 81, 93-100 (1996). A departure is appropriate only in the extraordinary case that falls outside the “heartland”No. 00-50894 c/w Nos. 00-51161 & 00-51163 & 00-51183 & 00-51185

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of typical offenses covered b y the relevant guideline. U.S.S.G. Ch. 1, Pt. A 4(b), p.s. Application of the abuse-of-discretion standard to a district

court’s departure ruling may entail consideration of a question of
law. S ee Koon , 518 U.S. at 100. In this situation, we give no
deference to the district court’s underlying legal conclusion, but
the abuse-of-discretion standard still applies. “ A district court by definition abuses its discretion when it makes an error of law.”
Id.
The district court’s rationale for departing downward in these
five cases was not based on the defendants’ conduct or on the unique circumstances surrounding the offenses of conviction. The
court’s rationale was based on Apprendi which the court viewed as casting doubt on the continuing viability of cont rolling Supreme

Court authority, Almendarez-Torres v. United States , 523 U.S. 224, 226-27 (1998). In Almendarez-Torres , the Supreme Court held that
the penalties of 8 U.S.C. § 1326(b) are sentencing enhancements and
d o not constitute a separate offense from 8 U.S.C. § 1326(a) and

t hat “neither the statute nor the Constitution requires the

Government to charge the

. . . earlier conviction[] in the
indictment.” 523 U.S. at 226-27. The district court concluded
that the question concerning Almendarez-Torres ’ continuing viability was sufficient to take these five convictions out of the heartland of illegal reentry cases for purposes of sentencing.
Appren di did not overrule the holding of Almendarez-Torres

. See Apprendi , 530 U.S. at 489-90; United States v. Chapa-Garza , 243No. 00-50894 c/w Nos. 00-51161 & 00-51163 & 00-51183 & 00-51185

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F.3d 921, 928 (5th Cir. 2001). The guidelines implement the sentencing enhancement provision of 8 U.S.C. § 1326(b)(2) through U.S.S.G. § 2L1.2(b)(1)(A). United States v. Nava-Perez , 242 F.3d 277, 278 (5th Cir. 2001), petition for cert. filed , (May 11, 2001) (No. 00-9979). The district court erred in its underlying legal
conclusion and disregarded controlling authority. Without the

erroneous underlying legal conc lusion concerning the affect of Apprendi upon Almendarez-Torres , there is nothing to take the five cases outside the heartland of illegal-reentry cases. See United
States v. Grosenheider , 200 F.3d 321, 334 (5th Cir. 2000). Thus,
the d istrict court abused its discretion in downwardly departing from the relevant guideline range. See Koon , 518 U.S. at 111.

We vacat e the sentences and remand for resentencing not inconsistent with this opinion.

SENTENCES VACATED AND CAUSES REMANDED FOR RESENTENCING.