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

-2-

*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this opinion should not be published and is not precedent except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.

____________________

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.

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Appeals from the United States District Court

for the Western District of Texas

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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 defendant
No. 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.

Martin Lopez-Ayala argues that the Government failed to

preserve its objection, and therefore, review is for plain error.

Our review of the appellate record reveals that the Government’s

objection to application of Apprendi,

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 formulating 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

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00-51183 & 00-51185

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of typical offenses covered by 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. See 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 controlling 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

do not constitute a separate offense from 8 U.S.C. § 1326(a) and

that “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.

Apprendi did not overrule the holding of Almendarez-Torres.

See Apprendi, 530 U.S. at 489-90; United States v. Chapa-Garza, 243
No. 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 conclusion 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 district court abused its discretion in downwardly departing

from the relevant guideline range. See Koon, 518 U.S. at 111.

We vacate the sentences and remand for resentencing not

inconsistent with this opinion.

SENTENCES VACATED AND CAUSES REMANDED FOR RESENTENCING.