[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



# United Stat es Court of Appeals

For the First C ircuit

No. 01-2465 UNITED STATES, Appellee,

v. BELKIS ALTAGRACIA ORTIZ-DE MUNDO, Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Juan M. Pérez-Giménez, U.S. District Judge ]

Before Lynch, Circuit Judge , Cyr, Senior Circuit Judge , and Lipez, Circuit Judge .

Joseph C. Laws, Jr. , Federal Public Defender, and Yasmin A. Irizarry , Assistant Federal Public Defender, o n br ief for appellant. H.S. Garcia , Unit ed S tates Attorney, Sonia I. Torres-Pabon , Assistant UnitedStates Attorney, and Nelson Perez-Sosa , Assistant United States Attorney, on brief for appellee.

December 9, 20022

Per Curiam . Defendant-appellant Belkis Altagracia Ortiz-De Mundo appeals from the district court's refusal to grant a downward departure pursuant to U.S.S.G. § 2L1.2, Application Note 5 (2000). The government argues that this court lacks jurisdictio n t o review the sentencing court's refus al t o grant the departure because it was merely an exercise of its discretion. "[A]n appeal lies if the departure decision is based on an assessment that the sentencing court is powerless to depart on the grounds alleged by the proponent, but not if the court simply declines to exercise its discretionary power to depart." United States v. Morrison , 46 F.3d 127, 130 (1 st Cir. 1995)(emphasis in original). "When determining whether the sentencing court merely refused to exercise its discretionary power to depart, we consider the totality of the record and the sentencing court 's actions as reflected therein." Id. The transcript of the sentencing hearing clearlyindicates that the sentencing court believed that a departure was impermissible u nde r § 2L1.2 because one of the req uire ments of Application Note 5 (concerning length of the sentence imposed for the previous con vic tion) had not been met. Its ambiguous statement that "if I don't exercise it, there would still be no question about it," absent any reference to facts which made such a departure unjustified in this case, does not deprive this court of jurisdiction. Compare United St ates v . Jackson , 93 F.3d335, 338 (7 th Cir. 1996) (holding that co urt lacked jurisdiction "where the district court unambiguouslyindicates that1 We note that on remand for resentencing the current

Sentencing Guidelin es, including the amended version of § 2L1.2, apply. See , e.g. , United States v. Kirkham , 195 F.3d 126, 132 n.5 (2d Cir. 1999). 3 it would not depart from the sentence, even if it had authority to do so") (emphasis added). We find that this court has jurisdiction to review the district court's determination that it lacked authority to depart pursuant to § 2L1.2, Application Note 5. Application Note 5 permits a downward departure if § 2L1.2(b)(1)(A) applies and three other requirements are met. The PSRin this case indicates that the relevant subsection applied and that all three of the other requirements of Application Note 5 were met. The district court erred in concluding that the requirement that the term of imprisonment imposed for th e a ggravated felony which triggered t he 1 6-level increase under subsection (b)(1)(A) "not exceed one year" was not met in this case. The PSR indicates (andthe district court found) that the relevant prison sente nc e imposedwas one year. Therefore, the sente ncing court had authorityto grant a departure from the guideline sentencing range pursuant to Application Note 5 "based on the seriousness of the aggravatedfelony." § 2L1.2, comment. (n.5). Its conclusion to the contrary was erroneous. The sentence is vacated and the case is remandedfor resentencing. 1 See Loc.R. 27(c).