United States Court of Appeals

For the First Circuit

No. 99-2121

UNITED STATES OF AMERICA,

Appellee,

v.

JOSE DE JESUS DELGADO-REYES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Daniel R. Domínguez, U.S. District Judge]

Before

 Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Joseph C. Laws, Jr., Federal Public Defender, and Anita

Hill-Adames, Assistant Federal Public Defender, on brief for

appellant.

Guillermo Gil, United States Attorney, Jorge E. VegaPacheco, Assistant United States Attorney, and Thomas F.

Klumper, Assistant United States Attorney, on brief for

appellee.
March 29, 2001
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COFFIN, Senior Circuit Judge. This sentencing case

arises from the chart-like arrangement of the Sentencing

Guidelines table, which sets penalties for criminal conduct

based both on the nature of the current offense (the offense

level, plotted on the vertical axis) and on the number and

severity of the defendant's prior convictions (the criminal

history category, plotted on the horizontal axis). The district

court concluded that a provision barring relief from an

enhancement to the base offense level (vertical departure) also

cabined its discretion to depart from the assigned criminal

history category (horizontal departure). Because the Guidelines

treat these two calculations separately, we conclude that the

strictures of the offense level guideline do not apply to bar

horizontal departures.

The particular provisions at issue here are Guideline

4A1.3, which permits departures from the criminal history

category if that category "significantly over-represents the

seriousness" of the defendant's prior offenses, and application

note 5 of Guideline 2L1.2, which prohibits downward departures

from the offense level for illegal re-entry after deportation

for an aggravated felony unless a narrow set of conditions are

met. These particular guidelines apply to different axes of the

sentencing calculus. Application note five of Guideline 2L1.2
1 Appellant's record would have placed him into criminal

history category III absent the stipulation.

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restricts vertical departures; Guideline 4A1.3 relates to

horizontal departures. The district court declined to consider

departing horizontally under Guideline 4A1.3 based on the

prohibition against a vertical departure under Guideline 2L1.2.

As we explain below, this legal error requires that we remand

the case for re-sentencing.

When defendant-appellant pleaded guilty to illegal reentry after deportation for a prior aggravated felony, the

government stipulated to calculating his sentence under criminal

history category (CHC) I because a higher category would be

"overrepresentative" of his prior offenses.1 Invoking Guideline

4A1.3, the government also urged that position at sentencing.

Under CHC I, appellant would have been sentenced within the

range of 37 to 46 months' imprisonment. Notwithstanding the

parties' stipulation, the court sentenced appellant under the

range prescribed by CHC III to 46 months. Coincidentally, the

46-month sentence falls at the top of the CHC I range and at the

bottom of the CHC III range. But the court made it clear, and

the judgment reflects, that the sentence was imposed under the

CHC III range.
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In disregarding the criminal history stipulation, the

court relied on Guideline 2L1.2, which governs the calculation

on the other axis, the offense level, for unlawful re-entry

sentences. Under that provision, 16 levels are added to a

defendant's base offense level if the defendant's deportation

was predicated on a conviction for an aggravated felony. See

U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)

(1998). Application note 5 of the guideline authorizes

departures from the 16-level increase if defendant meets three

conditions: (1) he has only one prior felony conviction; (2) it

was not for a crime of violence or firearms offense; and (3) the

term of imprisonment imposed did not exceed one year. Id. §

2L1.2, cmt. n.5 (adopted 1997). Here, appellant did not meet

the third condition because he had been sentenced to more than

a year for his aggravated felony conviction, a drug charge in

New York. The court consequently declined to depart.

As both he and the government argued below, appellant

contends that the court had discretion to depart under Guideline

4A1.3, the Sentencing Commission's policy statement on

departures from the criminal history category, and that the

sentencing court erroneously imported the limitation on offense

level departures into the criminal history category setting. In

other words, appellant asserts that these two guidelines govern
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different types of departures: Guideline 2L1.2 controls the

court's discretion to depart vertically from the 16-level

enhancement to the offense level calculation, while Guideline

4A1.3 concerns horizontal departures for all offenses in which

the defendant's criminal history is either under- or, in this

case, over-represented.

We agree with appellant that the prerequisites of

application note 5 govern only the decision to depart on the

vertical axis of the table, i.e., from the 16-level aggravated

felony enhancement in calculating the offense level. Nothing in

that note refers to the criminal history category; by its terms,

note 5 applies only to the offense level calculation under

Guideline 2L1.2. We have previously recognized that the

aggravated felony enhancement of that guideline serves a

distinct punitive purpose (deterrence) apart from the concerns

about recidivism reflected in the criminal history category.

See United States v. Zapata, 1 F.3d 46, 49 (1st Cir. 1993);

accord United States v. Crawford, 18 F.3d 1173, 1179-80 (4th

Cir. 1994). We find no support for extending the explicit,

limited reach of application note 5 to supersede another

provision that governs a different factor in the sentencing

calculation.
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Application note 5 of Guideline 2L1.2, therefore, does

not limit a court's discretion to depart horizontally where the

prior record of an illegal re-entry defendant, just like any

other, is over-represented by the assigned criminal history

category. Cf. United States v. Perez, 160 F.3d 87, 89 (1st Cir.

1998) (en banc) (recognizing that "departures for atypical

criminal history are specifically encouraged under U.S.S.G. §

4A1.3"). Thus, a defendant who is not qualified for a vertical

departure because he fails to satisfy the requisites of

application note 5 still may be entitled to a horizontal

departure if the district court finds that the assigned criminal

history category significantly over-represents the seriousness

of defendant's prior convictions.

The government neither quibbles with this reading of

the Guidelines, nor disavows its stipulation, but argues only

that we are without jurisdiction to adjudicate this appeal

because a sentencing court's discretionary refusal to depart is

ordinarily not reviewable. See, e.g., United States v. Baltas,

236 F.3d 27, 39-40 (1st Cir. 2001) (holding that decisions not

to depart horizontally are unreviewable unless the sentencing

court committed legal error in making its determination). The

well-established exception to this general rule, however,

empowers us if the sentencing court did not realize it could
2 "If the court of appeals determines that the sentence--

 (1) was imposed in violation of law or imposed as a result of

an incorrect application of the sentencing guidelines, the court

shall remand the case for further sentencing proceedings with

such instructions as the court considers appropriate." 18

U.S.C. § 3742(f)(1).

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depart. E.g., United States v. Clase-Espinal, 115 F.3d 1054,

1056 n.2 (1st Cir. 1997) ("Although a refusal to depart is not

ordinarily appealable, the rule is otherwise if, as here, the

district court refused on the ground that it lacked the

authority to depart." (internal citation omitted)). The

government contends that the court was aware of its discretion,

but refused to depart nonetheless.

The transcript of the sentencing hearing belies this

contention. The Judge gave this rationale for not departing:

And this Court does not deem reasonable to depart in

this case because[,] although the note may be

interpreted as only applicable to the offense level

and not the Criminal History Category[,] this Court

deems that note number five of 2L1.2 is a warning to

the Court of downward departing only if those three

elements are present. . . . Hence, the Court cannot

depart and will not depart.

The court's statement that it could not, and thus would not,

depart reflects a view that it lacked authority. Thus, we have

jurisdiction to review that misapplication of the Guidelines.

See 18 U.S.C. § 3742(f)(1).2

The court imposed a sentence at the bottom of what it

thought was the applicable range under CHC III. If the court
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had realized it was authorized to depart, and had accepted the

government's stipulation that the CHC I range applied, as it

seemed inclined to do, it could have imposed a sentence of nine

fewer months. The government has stood by its stipulation

throughout the plea and sentencing hearings and does not take a

contrary position in this appeal. Given the court's apparent

refusal to depart based on an erroneous view of the law, we

remand for re-sentencing. Of course, under both the plea

agreement and the Guidelines, the court retains the discretion

to depart, or not, on remand. We express no opinion about the

merits of such a departure. We merely hold that the court is

authorized to do so.

Sentence vacated and remanded for re-sentencing.