[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

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, on brief for

appellant.

H.S. Garcia, United States Attorney, Sonia I. Torres-Pabon,

Assistant United States Attorney, and Nelson Perez-Sosa, Assistant

United States Attorney, on brief for appellee.

December 9, 2002
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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 jurisdiction to

review the sentencing court's refusal to 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 (1st 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

clearly indicates that the sentencing court believed that a

departure was impermissible under § 2L1.2 because one of the

requirements of Application Note 5 (concerning length of the

sentence imposed for the previous conviction) 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 States v. Jackson, 93

F.3d 335, 338 (7th Cir. 1996) (holding that court lacked

jurisdiction "where the district court unambiguously indicates that
1 We note that on remand for resentencing the current

Sentencing Guidelines, 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).

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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

PSR in 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 the aggravated felony

which triggered the 16-level increase under subsection (b)(1)(A)

"not exceed one year" was not met in this case. The PSR indicates

(and the district court found) that the relevant prison sentence

imposed was one year. Therefore, the sentencing court had

authority to grant a departure from the guideline sentencing range

pursuant to Application Note 5 "based on the seriousness of the

aggravated felony." § 2L1.2, comment. (n.5). Its conclusion to the

contrary was erroneous.

The sentence is vacated and the case is remanded for

resentencing.1 See Loc.R. 27(c).