In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3640

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ROBERTO PALOMINO-RIVERA,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CR 371--Suzanne B. Conlon, Judge.

ARGUED MARCH 28, 2001--DECIDED July 20, 2001 

 Before RIPPLE, KANNE and EVANS, Circuit

Judges.

 RIPPLE, Circuit Judge. Roberto PalominoRivera was indicted on one count of being

present in the United States without

authorization after having been deported

previously, in violation of 8 U.S.C. sec.

1326. He pleaded guilty. The Government

recommended that Mr. Palomino-Rivera

receive a sixteen-level increase in

offense level pursuant to United States

Sentencing Guideline sec. 2L1.2(b)(1)(A)

because he had been deported after being

convicted of an aggravated felony. Mr.

Palomino-Rivera filed a motion for a

downward departure on the ground that the

sixteen-level increase overstated the

seriousness of the underlying crime. The

district court agreed in part and granted

Mr. Palomino-Rivera an eight-level

downward departure. The Government now

appeals. It submits that the district

court erred when it granted the

departure. For the reasons set forth in

the following opinion, we reverse the

decision of the district court and remand

the case for resentencing. 

I

BACKGROUND

 On May 9, 2000, Mr. Palomino-Rivera was

arrested at O’Hare International Airport

for theft and disorderly conduct. A

citizen of Peru, he was, at the time of
his arrest, in the United States

illegally. Local authorities therefore

turned him over to the Immigration and

Naturalization Service.

 On June 14, 2000, Mr. Palomino-Rivera

was indicted on one count of being

present in the United States without

authorization after having been deported

previously. Prior to the date of his

arrest, he had been deported twice and,

on another occasion, had been permitted

to return voluntarily to Peru./1 With

respect to the present offense, he

initially entered a plea of not guilty

and then withdrew it and pleaded guilty. 

 Following Mr. Palomino-Rivera’s guilty

plea, the United States Probation Office

prepared a pre-sentence investigation

report ("PSR") recommending a Sentencing

Guidelines range of 46 to 57 months’

imprisonment. In calculating that

sentence, the PSR began with a base

offense level of eight for unlawful entry

into the United States, see U.S.S.G. sec.

2L1.2(a), and then applied a sixteenlevel enhancement, see U.S.S.G. sec.

2L1.2(b)(1)(A). This latter provision

authorizes such an augmentation for

defendants who previously have been

deported after a conviction for an

aggravated felony. According to the PSR,

Mr. Palomino-Rivera had been convicted of

an aggravated felony--theft by taking on

September 21, 1988--and had received a

three-year term of imprisonment. The PSR

further recommended a three-level

reduction for acceptance of

responsibility; it also assigned him a

Criminal History Category of III. 

 On September 1, 2000, Mr. PalominoRivera filed a motion for a downward

departure of ten levels. Relying on

Application Note 5 to U.S.S.G. sec.

2L1.2(b)(1)(A) and United States v. CruzGuevara, 209 F.3d 644 (7th Cir. 2000), he

argued that he met the requirements of

Application Note 5 and that the sixteenpoint enhancement "overstate[d] the

seriousness of the underlying crime."

R.18 at 6.

 At the time of sentencing, Mr. PalominoRivera again sought a ten-level departure

on the basis of Application Note 5. He

argued that the underlying felony--theft

by taking--was "barely" a felony and,

therefore, should not be treated the same
as other, more serious aggravated

felonies. Sent. Tr. at 14. The district

court agreed and granted the motion in

part, awarding Mr. Palomino-Rivera an

eight-level departure. In the court’s

view, the departure was warranted because

the felony used to enhance Mr. PalominoRivera’s sentence was a "borderline

felony" not "adequately considered by the

Commission, whether or not application

note 5 applies." Id. at 27. Further, the

court saw no rational basis for "lumping

[theft by taking] together with treason,

murder and rape." Id. 

 Taking into account the adjusted offense

level, the district court sentenced Mr.

Palomino-Rivera to a term of 24 months’

imprisonment, the high end of the 18-24

months authorized by the Guidelines. The

Government now appeals.

II

ANALYSIS

 We review a district court’s decision to

depart for an abuse of discretion. See

Koon v. United States, 518 U.S. 81, 99-

100 (1996). In doing so, we accept the

district court’s findings of fact

supporting the departure unless clearly

erroneous. See United States v. Gee, 226

F.3d 885, 900 (7th Cir. 2000). A district

court "by definition abuses its

discretion when it makes an error of

law." Koon, 518 U.S. at 100. 

A. Eight-Level Departure

 Under U.S.S.G. sec. 2L1.2, the sentence

of a defendant convicted of unlawfully

entering or remaining in the United

States can be increased if that defendant

(1) previously was deported after a

criminal conviction or (2) unlawfully re

mained in the United States following a

removal order. See U.S.S.G. sec.

2L1.2(b)(1). If the underlying conviction

was for an aggravated felony, the

increase is by sixteen levels. See

U.S.S.G. sec. 2L1.2(b)(1)(A). Application

Note 5, however, provides a mechanism

whereby a district court can mitigate the

severity of the sixteen-level increase in

certain cases. A downward departure may

be warranted, based on the seriousness of

the aggravated felony at issue, if "(A)

the defendant has previously been

convicted of only one felony offense; (B)
such offense was not a crime of violence

or firearms offense; and (C) the term of

imprisonment imposed for such offense did

not exceed one year." U.S.S.G. sec.

2L1.2, Application Note 5./2

 The parties disagree about the degree of

discretion available to the sentencing

court when faced with the sort of

situation contemplated by Application

Note 5. In the Government’s view, a

defendant can only receive a departure if

all three conditions set forth in the

note are met. Mr. Palomino-Rivera,

however, argues that, even if he fails to

satisfy each of the criteria in the

application note, the district court

nevertheless had discretion under Koon v.

United States, 518 U.S. 81 (1996), to

grant a downward departure based on its

assessment of the seriousness of the

predicate aggravated felony. Nothing in

Note 5 forbids, he submits, an

individualized consideration of factors

such as the underlying facts of the prior

offense or actual time served. 

 

1. 

 A sentencing court may depart and

"impose a sentence outside the range

established by the applicable guidelines,

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 the

guidelines that should result in a

sentence different from that described.’"

U.S.S.G. sec. 5K2.0 (quoting 18 U.S.C.

sec. 3553(b)). Before such a departure is

permitted, however, "certain aspects of

the case must be found unusual enough for

it to fall outside the heartland of cases

in the Guideline." Koon, 518 U.S. at 98.

In the absence of a "characteristic or

circumstance that distinguishes a case as

sufficiently atypical to warrant a

sentence different from that called for

under the guidelines, a sentence outside

the guideline range is not authorized."

U.S.S.G. sec. 5K2.0, commentary. Mr.

Palomino-Rivera submits that he presents

an atypical case that was not adequately

considered by the Sentencing Commission

("Commission"). The district court agreed

and, in granting the downward departure,

explained that it did not "think this

kind of a borderline felony was
adequately considered by the Commission."

Sent. Tr. at 27.

 We respectfully disagree with the

district court and conclude that the

Commission fully considered the issue.

There can be no question that the

Commission was aware that the blanket

sixteen-level enhancement may work a

disproportionately harsh sentence in

cases in which the aggravated felony is

relatively minor. Indeed, Application

Note 5 specifically states that

"[a]ggravated felonies that trigger the

[sixteen-level enhancement] vary widely."

Nevertheless, the Commission limited the

grounds of departure to the specific

circumstances detailed in the note. Under

these circumstances, we cannot say that a

departure tied to the severity of the

aggravated felony is a mitigating factor

not taken into consideration by the

Guidelines.

 A downward departure would only be

permissible if Mr. Palomino-Rivera’s case

fell outside the heartland of cases of

unlawful reentry subsequent to an

aggravated felony. See Koon, 518 U.S. at

98. In promulgating Application Note 5,

the Commission defined the heartland of

sec. 2L1.2 by exclusion; a downward

departure from the sixteen-point

enhancement is authorized only if the

defendant satisfies all three criteria

enumerated in Application Note 5. This

conclusion mirrors that reached by other

circuits on the identical issue. See

United States v. Marquez-Gallegos, 217

F.3d 1267, 1270-71 (10th Cir.), cert.

denied, 121 S. Ct. 246 (2000); United

States v. Yanez-Huerta, 207 F.3d 746, 750

(5th Cir.), cert. denied, 121 S. Ct. 432

(2000); United States v. Tappin, 205 F.3d

536, 540-41 (2d Cir.), cert. denied, 121

S. Ct. 260 (2000); see also United States

v. McKenzie, 193 F.3d 740, 742 (3d Cir.

1999)./3

 We find persuasive the reasoning of our

colleagues in the Second Circuit in

Tappin:

The Sentencing Commission stated

explicitly that departure on the ground

of seriousness of the predicate

aggravated felony may be appropriate when

a defendant meets all three enumerated

criteria in [Application Note 5]. By

necessary implication, therefore, the
Sentencing Commission intended that all

other cases . . . should be treated as

within the heartland of illegal reentry

cases under sec. 2L1.2(b)(1)(A), and that

downward departure in such cases on the

ground of seriousness of the predicate

aggravated felony would be improper.

Tappin, 205 F.3d at 540-41. Any other

interpretation would render the

application note "effectively

meaningless." Id. at 541. We shall not

"second-guess the conscious policy

choices of Congress and the Sentencing

Commission, an activity in which we are

not at liberty to engage." MarquezGallegos, 217 F.3d at 1271.

 In sum, the Commission did take into

account the varying severities of

aggravated felonies when it promulgated

Application Note 5. A defendant whose

record does not satisfy all three

criteria enumerated in the note therefore

cannot be considered atypical and

consequently outside the heartland of

illegal reentry cases. 

2.

 We now turn to the specific facts of Mr.

Palomino-Rivera’s case. According to the

Government, Mr. Palomino-Rivera does not

satisfy two of the three criteria set

forth in Application Note 5; he has at

least four prior felony convictions, and

he received a prison term of three years

on a theft by taking conviction in 1988

in Georgia. Mr. Palomino-Rivera argues

(1) that the district court only found

that he committed one prior aggravated

felony, theft by taking and (2) it is

questionable whether that offense itself

constitutes an aggravated felony./4

 If Mr. Palomino-Rivera has been

convicted of more than one aggravated

felony, or if he did receive a prison

term of more than a year for a single

felony, he is ineligible for a downward

departure pursuant to Application Note

5./5 Upon examination of the record,

however, we note that, although the

district court assumed that Mr. PalominoRivera had been convicted of at least one

aggravated felony, it never made an

explicit finding to that effect. A

sentencing court "must clearly explain

the reasons for the departure and make

any necessary factual findings as
required by the guidelines." United

States v. Eiselt, 988 F.2d 677, 680 (7th

Cir. 1993). Because the record is

deficient in this regard, on remand, the

district court must (1) make the required

factual findings on the record and (2)

resentence Mr. Palomino-Rivera in

accordance with this opinion. 

B. Apprendi 

 Mr. Palomino-Rivera provides an

alternative basis for affirming the

district court’s sentence. He claims that

the two-year sentence he received is the

maximum sentence available, under the

rule announced in Apprendi v. New Jersey,

530 U.S. 466 (2000). This argument is

without merit. 

 In general, aliens who return to the

United States after deportation and

without permission are subject to two

years’ incarceration. See 8 U.S.C. sec.

1326(a). An increased prison term of up

to twenty years also can be imposed for

aliens "whose [prior] removal was

subsequent to a conviction for commission

of an aggravated felony." 8 U.S.C. sec.

1326(b)(2). Mr. Palomino-Rivera argues

that he cannot receive a sentence of more

than two years because the indictment did

not charge, and the factfinder did not

find beyond a reasonable doubt, that he

previously had been convicted of an

aggravated felony.

 As the Government points out, Mr.

Palomino-Rivera’s position conflicts with

the holding of Almendarez-Torres v.

United States, 523 U.S. 224 (1998). The

Supreme Court specifically addressed in

Almendarez-Torres whether the provisions

of sec. 1326(b)(2) set forth a sentencing

factor or a separate element of a sec.

1326 charge. The Court concluded that

sec. 1326(b)(2) is a "penalty provision,

which simply authorizes a court to

increase the sentence for a recidivist.

It does not define a separate crime.

Consequently, neither the statute nor the

Constitution requires the Government to

charge the factor that [Section

1326(b)(2)] mentions, an earlier

conviction, in the indictment." Id. at

226-27. This decision, therefore,

forecloses Mr. Palomino-Rivera’s position

here.

 Although Mr. Palomino-Rivera maintains
that the Supreme Court’s decision in

Apprendi has undermined the reasoning of

Almendarez-Torres, we note that Apprendi

explicitly states that "[o]ther than the

fact of a prior conviction, any fact that

increases the penalty for a crime beyond

the prescribed statutory maximum must be

submitted to a jury, and proved beyond a

reasonable doubt." 530 U.S. at 490. Thus,

Apprendi left the rule of AlmendarezTorres intact. 

Conclusion

 There is no Apprendi violation in this

case. The district court did, however,

misapprehend its authority to award Mr.

Palomino-Rivera an eight-level departure

if he did not meet all the criteria of

Application Note 5. Accordingly, the

judgment of the district court is

reversed, and the case is remanded for

further factfinding and resentencing in

conformity with this opinion.

REVERSED and REMANDED

FOOTNOTES

/1 On December 23, 1992, in New Orleans, Louisiana,

Mr. Palomino-Rivera was ordered deported and

removed from the United States to Peru. He was

formally removed from the United States on February 10, 1993, from Miami, Florida. Several months

later, on September 21, 1993, he was ordered

deported from Miami, and the next day he was

formally removed from the United States. Finally,

on March 27, 1997, Mr. Palomino-Rivera was

stopped by the United States Border Patrol in

Miami while attempting to enter the United

States. He was ordered to return voluntarily to

Peru by April 1997. 

/2 sec. 2L1.2 provides in full:

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) If the defendant previously was deported

after a criminal conviction, or if the defendant

unlawfully remained in the United States following a removal order issued after a criminal

conviction, increase as follows (if more than one

applies, use the greater):

(A) If the conviction was for an aggravated

felony, increase by 16 levels.

(B) If the conviction was for (i) any other
felony, or (ii) three or more misdemeanor crimes

of violence or misdemeanor controlled substance

offenses, increase by 4 levels.

 More specifically, Application Note 5 provides

that: 

Aggravated felonies that trigger the adjustment

from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the defendant has

previously been convicted of only one felony

offense; (B) such offense was not a crime of

violence or firearms offense; and (C) the term of

imprisonment imposed for such offense did not

exceed one year, a downward departure may be

warranted based on the seriousness of the aggravated felony.

/3 We recognize that our conclusion may be in tension with the decisions of other circuits. See

United States v. Alfaro-Zayas, 196 F.3d 1338,

1342-44 (11th Cir. 1999); United States v. Sanchez-Rodriguez, 161 F.3d 556, 562-63 & n.12 (9th

Cir. 1998) (en banc); United States v. Diaz-Diaz,

135 F.3d 572, 579-82 (8th Cir. 1998). To the

extent our holding conflicts with these decisions, we decline to follow them. 

/4 Mr. Palomino-Rivera also submits that an ambiguity in the statute defining an aggravated felony,

8 U.S.C. sec. 1101(a)(43)(G), suggests that only

a state felony that requires the imposition of a

mandatory minimum sentence can be the basis of an

enhancement under U.S.S.G. sec. 2L1.2. We believe

that such a reading is entirely implausible. If

Mr. Palomino-Rivera’s analysis were correct, it

would undermine substantially the need for Application Note 5; yet the Commission, concerned

about the wide variety of situations that fall

within the ambit of the "aggravated felony"

definition, promulgated the note to ensure the

needed flexibility in the application of the

aggravated felony provision of the Guidelines. 

/5 Mr. Palomino-Rivera urges us to consider the fact

that he only served nine months of the three-year

sentence on the theft by taking conviction. That

fact is irrelevant to our analysis. See 8 U.S.C.

sec. 1101(a)(48)(B) ("Any reference to a term of

imprisonment or a sentence with respect to an

offense is deemed to include the period of incarceration or confinement ordered by a court of law

regardless of any suspension of the imposition or

execution of that imprisonment or sentence in

whole or in part.") (emphasis supplied).