United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1287

___________ United States of America, * * Appellee, * * v. * * Fernando Diaz-Diaz, * * Appellant. *

___________ Appeals from the United States No. 97-1491 District Court for the

___________ District of Minnesota. United States of America, * * Appellant, * * v. * * Fernando Diaz-Diaz, * * Appellee. *

___________ Submitted: October 24, 1997 Filed: February 2, 1998

___________The Honorable Michael J. Davis, United States District Judge for the District 1 of Minnesota. -2- Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ WOLLMAN, Circuit Judge.
Fernan do Diaz-Diaz appeals from the judgment of conviction entered by th e district court following a jury verdict finding Diaz-Diaz guilty of the offense o f

1 unlawful reentry of a deported alien, a violation of 8 U.S .C. § 1326. The United States cross-appeals from the sentence imposed by the district court. We affirm.

I.

Fernando Diaz-Diaz is a citizen of the Republic of Mexico who has mad e repeated efforts to reside in the United States illegally. In 1982, Diaz-Diaz was first discovered in the United States and was ordered to depart voluntarily. On October 22, 1992, Diaz-Diaz was deported to Mexico from El Paso, Texas. In August of 1993, he was again volunta

rily returned to Mexico. In October of 1995, he was deported once more, this time from Laredo, Texas.
During his periods of illegal residency in the United States, Diaz-Dia z accumulated a substantial criminal history. In 1978, Diaz-Diaz was convicted o f resisting a peace officer in River Forest, Illinois. In 1985, he was convicted o f posse ssion of a stolen motor vehicle in Arlington Heights, Illinois, and wa s subsequently sentenced for violations of his probation in connection with that incident. In 1990, Diaz-Diaz was arrested in Indianapolis, Indiana, and charged with rape , criminal confinement, and battery for an incident in which he dragged a woman into an abando ned house and forced her to have sexual intercourse with him. A ple a agreement resulted in his conviction for sexual battery.-3-

By 1992, Diaz-Diaz was residing in Minnesota, where his criminal activitie s continued. In June of

that year, Diaz-Diaz was convicted of theft. In March of 1994, he was con victed of consuming alcohol in a public place. In July of 1995, Diaz-Diaz sol d 8.3 grams of marijuana to an undercover police officer. During his arrest, DiazDiaz informed police that he had a pound of marijuana at home and assured them that he would be out selling the drug again within a few hours. Eventually, he wa s convicted o f the sale of a controlled substance. Finally, in February of 1996, polic e were called to a residence in Minneapo lis to investigate a murder. Witnesses reported that Diaz-Diaz had stabbed the victim in the abdomen. Thepolice officers found DiazDiaz unconscious and slumped in a chair in the basement. One of his hands wa s stained with blood, and blood was spl attered on the chair, walls, and floor. Diaz-Diaz
was arrested and charged with second degree murder. The charges were dismissed , however, after prosecutors learned that the witnesses had been deported and could not be located.
Soon after, in July of 1996, Diaz-Diaz was indicted in distric t court on one count of illegal reentry in viola

tion of 8 U.S.C. § 1326. Specifically, the indictment charged Diaz-Diaz as follows:

Count I

On or about June 11, 1996, in the State and District of Minnesota, th e defend ant, Fernando Diaz-Diaz, an alien who had previously bee n arrested and deported two times from the United States pursuant to law, knowingly and unlawfully en tered the United States, having not obtained the consent of the Attorney General of the United State s for reapplication, in violation of 8 U.S.C. 1326.

United States v. Fernando Diaz-Diaz , No. 3-96-87, Indictment (D. Minn. filed July 17, 1996).Section 1326 of Title 8 provides in relevant part: 2 Reentry of deported alien; criminal penalties for reentry of certain deported aliens (a) Subject to subsection (b) of this section, any alien who— -4- Prior to trial, Diaz-Di az proposed a jury instruction regarding venue that would have i nformed the jury that the government must prove by a preponderance of th e evidence that the offense charged “wa s begun, continued, or completed” in the district of Minnesota. This instruction was rejected. At the close of the government’s case, Diaz-Diaz moved for a j udgment of acquittal, contending that the government had not established venue. This motion was denied. After the jury returned a guilty verdict, Diaz-Diaz renewed his mo tion for a judgment of acquittal and filed, in the alternative, a motion for a new trial, both of which the district court denied.

With a total offense level of 24 and a category III criminal history, Diaz-Dia z faced a r ange of imprisonment of 63 to 78 months under the applicable sentencin g guidelines. For reasons set forth later in this opini on, the district court sentenced DiazDia z to 10 months’ imprisonment, 3 years of supervised release, $50 specia l assessment, and mandatory drug testing as set forth by 18 U.S.C. § 3608.
Although Diaz-Diaz has completed his sentence and has been deported onc e again, h e appeals, challenging the sufficiency of the evidence and contending that the district court erred in rejecting his proposed instruction on the issue of venue.

II.

Section 1326 of Title 8 makes it a crime for a previously deported alien t o reenter the United St ates without the permission of the Attorney General. See United States v. Gomez , 38 F.3d 1031, 1033 (8th Cir. 1994). “This offense may be 2(1) has been arrested and deported, has been excluded and deported,

or h as departed the United States while an order of exclusion o r deportation is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the Unite d States, unless (A) prior to his reembarka tion at a place outside the United States or his application for admission from foreign contiguous territory, the Attorne y General has expressly consented to such alien’s reapplying for admiss ion; or (B) with respect to an alien previously excluded an d deport ed, unless such alien shall establish that he was not required t o obtain such advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2 years, o r both.
Subsection (b) of section 1326 provides for sentence enhancements when an alie n reen ters illegally following his deportation subsequent to a conviction for th e commission of certain criminal offenses. -5- com mitted

in three distinct manners: a previously deported alien may violate sectio n 1326 by, without the Attorney General’s permission, (1) entering, (2) attempting t o enter, or (3) being found in the United States.” Id. at 1033-34. Entry and attempted entry gener ally occur when an illegal alien enters or attempts to enter through a recognized p ort of entry. See id. In contrast, being found in the United State s typically, though not necessarily, involves a surreptitious entry by the alien and is a cont inuing violation that is not complete until he is discovered by immigratio n aut horities. See id. at 1034-35; United States v. Ortiz-Villegas , 49 F.3d 1435, 143 6 (9th Cir. 1995) (surreptitious entry not prerequisite to prosecution for being deported alien found in United States); United States v. Gay , 7 F.3d 200, 202 (11th Cir. 1993) (deporte d alien could be convicted of being “found in” United States regardless o f surreptitious entry).18 U.S.C. § 666 (1988). 3
-6- Di az-Diaz first challenges the sufficiency of the evidence. Because he wa s discovered in Minnesota, rather than being apprehended at a recognized port of entry, and because it is not known where or when he reentered the United States, Diaz-Diaz contends that he can only be considered as having been “found in” the United States and that h e should have been so charged. Instead, the indictment alleged that Diaz-Dia z “ente red” the United States “on or about June 11, 1996, in the State and district o f Minne sota.” Diaz-Diaz thus argues that the government did not prove the elements of the offens e as charged in the indictment, proving only that he was apprehended i n Minnesota and not that he entered in Minnesota.

Al though we agree with Diaz-Diaz that the record contains no evidence that his reentry in to the United States occurred in Minnesota, we are also satisfied that th e indictment was sufficient to charge him with the offense of illegal reentr y. An indictment is sufficient if it: (1) contains th e elements of the charged offense and fairly informs the de fendant of the charge against which he must defend; and (2) enables him to plea d double jeopardy as a bar to further prosecution. See United States v. Pemberton , 121 F.3d 1157, 1169 (8th Cir. 1997); United States v. Dolan , 120 F.3d 856, 864 (8th Cir

. 1997); F ed. R. Crim. P. 7(c)(1). Unless an indictment is so defective that by n o reasonable construction can it be said to charg e the offense for which the defendant was convicte d, it will be upheld. See Pemberton , 121 F.3d at 1169. When the issue i s whether an element of an offense has been omitted from an indictment, moreover, our inquiry is whether the omission is one of substance or one of form only. See id.

In Pemberton , we upheld the suffic iency of an indictment that neglected to allege
an a gency relationship between the defendant and the Leech Lake Band of Chippew a Indians, an element of the offense out lined in the statute under which the defendant was charged. See id. In so doing, we stated that a citation in the indictment to the

3-7-

applicable statute, while not in itself sufficient to supply an element of a charged offense omitted by the grand jury, see United States v. Camp , 541 F.2d 737, 740 (8th Cir. 1976), when considered in combination with t he other allegations in the indictment as a whole,
was adequate under the circumstances to have charged the defendant with the offense for which he was convicted. Se e Pemberton , 121 F.3d at 1169. See also United States
v
. Forbes , 16 F.3d 1294, 1297 (1st Cir. 1994); United States v. Campos-Asencio , 822 F.2d 506, 508 (5th Cir. 1987).

Th e nature of the difficulty here, as in Pemberton , is “one of form rather tha n substance.” 121 F.3d at 1169. Although the indictment might well have stated tha t Diaz-Diaz had been “found in” this country, we believe that as worded the indictment
was adequate to have placed Diaz-Diaz on notice of the specific crime with which h e ha d been charged. First, as in Pemberton , the indictment specifically referenced th e appropriate statute, 8 U.S.C. § 1326, which contains the “found in” language that i s missing fr om the charge. Second, the text of section 1326 was included within th e instructions provided to the jury. Instruction number fourteen, moreover, whic h identifi ed the essential elements to be proved, instructed the jury to determine no t whether Diaz-Diaz illegally “entered in Minnesot a” or was “found,” but whether he had “reentered the United States.”
Similarly, the indictment stated that Diaz-Diaz “knowingly and u nlawfully entered the United St ates.” As the Eleventh Circuit has noted, the fact that an illegal entry i s “capable, in and of itself, of constituting a distinct criminal offense, does not preclude it from being the predicate act to the crime of being illegally ‘found in’ the United States. By definition, one must ent er the United States, either legally or illegally, in order to be found therein.” United States v. Castrillon-Gonzalez , 77 F.3d 403, 406 (11th Cir. 1996). A re asonable reading of the indictment as a whole, including the statutory reference , shouldhave alerted Diaz-Diaz that he was accused of having unlawfully reentered the United States and of havi ng been found therein. Cf. Campos-Asencio , 822 F.2d at 508 (indictment charging illegal reentry after deportation-8-

suffic iently alleged element of lack of consent by Attorney General to reenter, wher e indictment alleged that alien was in United States unlawfully and cited specific statute).

Diaz-Diaz was sufficiently apprised “of the charges he would be required t o defend against,” allowing him “to effectively prepare for trial.” United States v

. Klaphake , 64 F.3d 435, 438 (8th Cir. 1995). Thus, the indictment was not “so defective that by no reasonable construction can it be said to [have charged] the offense for which the defendant w as convicted.” Pemberton , 121 F.3d at 1169; see also United States v. Davi s , 103 F.3d 660, 675 (8th Cir. 1996), cert. denied , 117 S. Ct. 2424 (1997) (mer e variance between i ndictment and proof “which occurs when the charging terms are left unaltered but the evidence offered at trial proves fact s different from those alleged in the ind ictment” does not require reversal of conviction unless variance results in actua l prejudice).
Because the indictment was minimally ad equate to charge Diaz-Diaz with having been found in the United States in violation of the illegal reentry statute, his challenge to the sufficie ncy of the evidence must fail. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences from the evidence tha t support the verdict. See Dolan , 120 F.3d at 868. We will uphold the verdict if there is
an interpretation of the evidence that would allow a reasonable jury to conclude guil t beyond a reasonable doubt. See id.

We h ave held that an alien is “found in” the United States when that alien i s “d iscovered in” the United States by immigration authorities. See Gomez , 38 F.3d a t 1036. “Disco very” in this context consists of two elements: (1) the discovery of a previo usly deported alien’s physical presence in the United States; and (2) th e ascert ainment

of the identity and status of the alien. See id. ; United States v. Rivera

Ventura , 72 F.3d 277, 282 ( 2d Cir. 1995). As Diaz-Diaz essentially concedes, the trial record is replete with evidence that he was discovered in Minnesota by immigration-9-

authoritie s after his arrest in Minneapolis for second degree murder. His presence and identity were clearly established. Moreover, the record demonstrates that D iaz-Diaz was here without the permission of the Attorney General and ha d been deported on two prior
occ asions. Because a reasonable jury could have concluded Diaz-Diaz was guilty o f illegal reentry beyond a reasonable doubt, his challenge to the sufficiency of the evidence cannot succeed.

III.

Di az-Diaz contends that the government failed to prove venue and that he wa s preju diced by the district court’s rejection of his proposed jury instruction on venue

. The government has the burden of proving correctness of venue by a preponderance of the evidenc e. See United States v. Chandler , 66 F.3d 1460, 1470 (8th Cir. 1995)

. Proper venue may be established by either direct or circumstantial evidence. See id.

The dis trict court relied on the general venue statute in Title 8 to rule that venue was pro per. Section 1329 of Title 8 prescribes the appropriate venue for section 1326 prosecu tions: “Notwithstanding any other law, such prosecutions or suits may b e instituted at any place in the U nited States at which the violation may occur or at which the p erson charged with a violation under 1325 or 1326 of this title may b e apprehended. ” Id. (em

phasis supplied). In dicta, the Supreme Court has characterized section 1 329 as authorizing the prosecution of illegal entry cases at the place o f apprehension. See United States v. Cores , 356 U.S. 405, 408 n.6 (1958).

In res ponse, Diaz-Diaz contends that the particularity of the indictment, whic h charged him specifically with “entering” the United States in the district of Minnesota, requires th ose specifics of venue alleged to be proved. He reminds us of th e constitutional requirement that the trial of all crimes “shall be held in the State whereU.S. CONST. art. III, § 2. See also U.S. CONST. amend. VI. 4
-10- the said Cr

imes shall have been committed,” and of our holding that an illegal “entry” 4 under section 1326 of Title 8 is committed and “complete when the de ported alien enters or attempts to enter thr ough a recognized INS port of entry.” Gomez , 38 F.3d at 1034. As Diaz-Diaz’s counsel noted at oral argument, it is incongruous to assert that a statute could effectively authori ze the prosecution of a completed offense in a district in which no part of that offense occurred, when the Constitution mandates otherwise.

Because we have determined that Diaz-Diaz was suffic iently charged with having been found in the United States in violation of section 1326, however, his challenge on the venue issue is no longer material. “In contrast to entryand attempted entry, a ‘found in’ violation is a continuing violation that is not complete until the alien is ‘discovered’ by immigration authorities.” Id. at 1034-35. The record e stablishes that Diaz-Diaz was discovered in Minnesota in 1996. Thus, his prosecution in tha t district was proper. See, e.g. , United States v. Asibor , 109 F.3d 1023, 1037 (5th Cir.), cert. denied , 118 S. Ct

. 254 (1997); United States v. Mancebo-Santiago , 886 F. Supp. 372, 374-75 (S.D.N.Y. 1995), aff’d , 112 F.3d 506 (2d Cir. 1996) (table). Moreover, since proof on the venue issue was clear, the district court did not err in refusing Diaz-Diaz’s propose d instruction. See United States v. Moeckly , 769 F.2d 453, 461 (8th Cir. 1985).

IV.

The go vernment cross-appeals from the sentence imposed by the district court

. In response, Diaz-Diaz argues that the cross-appeal is moot since he has served hi s entire sentence and has been deported.

The Supre me Court has stated that an appeal by the government relating to th e merits of a deported alien’s conviction is justiciable:-11-

That r espondents have been deported likewise does not remove th e controversy involved. Following a reversal of the Court of Appeals, there would be a possibility that respondents coul d be extradited and imprisoned for their cr

imes, or if respondents manage to re-enter this country on their own t hey would be subject to arrest and imprisonment for thes e convictions.

United States v. Vill amonte-Marquez , 462 U.S. 579, 581 n.2 (1983). Taking guidance from the Court’s willingness in Villamonte-Marquez “to let speculative contingencie s pr event the mootness of a government criminal appeal,” the Ninth Circuit has hel d justiciable an appeal from t he sentence of an alien who had completed his sentence and been d eported. United States v. Valdez-Gonzalez , 957 F.2d 643, 647 (9th Cir. 1992). In doing so, however, the court specifically res erved the question of mootness regarding the reversal of a sentence for an alien who has served his sentence and exited th e country:

We note, however, that in Villamonte , the Court’s reversal of th e cour t of appeals simply led to reinstatement of the defendant’ s convi ction and sentence. [citation omitted]. In the present case , however, any decision other than one affirming the lower cour t wouldnecessitate resentencing, and possibly preparation of a new sentence report. Whether such proceedings should or could b e carr ied on during a defendant’s absence is a question not presently before us.

Id. at 647 n.1.
Rely ing on the Ninth Circuit’s opinion, the Sixth Circuit has held that th e governm ent’s appeal of a downward departure was not rendered moot by th e defendant’s compl etion of his sentence and subsequent deportation. See United States v. Barajas-Nunez , 91 F.3d 826, 829 (6th Cir. 1996) (citing Valdez-Gonzalez , 957 F.2d at 646-47) (vacating and remanding for resen tencing). The Second Circuit has similarly-12-

held that a defendant’s deportation did not moot the government’s appea l of a downward depar ture in sentencing, so long as resentencing occurred within the defendant’ s remaining period of supervised release. See United States v. Londono , 100 F.3d 236, 241-42 (2d Cir. 1996). We are mindful, as well, that we have previously ordered th e detention of an alien defendant beyond the service of his sen tence pending appeal of that sentence by the government. See United States v. Mau l-Valverde , 10 F.3d 544, 547 n.2 (8th Cir. 1993).

We ag ree with the Second, Sixth, and Ninth Circuits that Villemonte-Marque z provide s support for the proposition that the deportation of a defendant who ha s completed his sentence does not automatically moot the government’s appeal of a downward departure in sen tencing. See Londono , 100 F.3d at 241-42; Barajas-Nunez , 91 F.3d at 829; Valdez-Gonzalez , 957 F.2d at 646-47. While we find it unlikely that the governm ent will seek to extradite him, the prospect that Diaz-Diaz might return to this country on his own accord is not only possible, but, given his history, probable.
The sentence imposed upon Diaz-Diaz included three year s of supervised release,
a term which, notwithstanding his deportation to Mexico, is scheduled to expire in the year 2000. See United States v. Akinyemi , 108 F.3d 777, 779 (7th Cir. 1997 ) (deport ation of defendant does not terminate sentence of supervised release); Unite d States v. Brown , 54 F.3d 234, 237-38 (5th Cir. 1995) (same). In fact, the terms of DiazDiaz’s release, in addition to prohibiting him from reentering the United States illegally, require him to report to the nearest United States Probation office wit hin 72 hours should he nevertheless elect to return. If Diaz-Diaz does illegally reenter the United States prior to the expiration of his term of supervised release, and if he is apprehended or hi s presen ce otherwise comes to the attention of the government, he would be subject t o incarcer ation or some alternative form of governmental supervision pursuant to th e conditi ons of his prior release from custody. See Barajas-Nunez , 91 F.3d at 829

. Because we do not believe such a prospect to be so speculative or remoteLike the Ninth Circui t, we limit our holding on the question of mootness to the 5 circumstances of this case. Se e Valdez-Gonzalez , 957 F.2d at 647 n.1. As a result of our conclusion in Part V of th is opinion that the district court did not commit an abuse of discretion in granting a downward departure to Diaz-Diaz, his sentence is simpl y affirmed. Whether an alien defendant who has completed his sentence and has been deported may be resentenced in absen tia by the district court, pursuant to a reversal of his sentence on appeal, is a question we need not n ow address. Similarly, we note that the question whether the government may app eal the sentence of a deported alien after his term of supervised release has expired is an issue not presently before us. -13- that it should prohibi t the exercise of jurisdiction, we hold that the government’s crossappeal from Diaz-Diaz’s sentence is not moot. 5

V.

In the routine

case, a conviction for illegal reentry carries a maximum penalty of 2 years of incarceration. See 8 U.S.C. § 1326(a). Congress has determined that such
a vio lation warrants a much more severe penalty when committed subsequent t o deportation following a criminal conviction. See Maul-Valverd e , 10 F.3d at 545; United States v. Amaya-Benitez , 69 F.3d 1243, 1246 (2d Cir. 1995). In such cases involving an aggravated felony, Congress has auth orized an enhanced term of imprisonment of up to 20 years. See 8 U.S.C. § 1326(b)( 2). The Sentencing Commission has implemented Congress’s view of the heigh tened gravity of an illegal reentry subsequent to a criminal convict ion. See Maul-Valverde , 10 F.3d at 545; United States v. Abreu-Cabrera , 6 4 F.3d 67, 75 (2d Cir. 1995). Section 2L1.2(a) of the U.S. Sentencing Guidelines Manual (U.S.S.G .) (1995) provides for a base offense level of 8 for an alien who unlawfull y enters or remains in the United States following his arrest and deportation in violation of 8 U.S.C. § 1326. This base level is subject toSectio n 2L1.2 of the Guidelines has been revised by an amendment effectiv e 6 November 1, 1997. However, both under the version of section 2L1.2 in effect at the ti me of Diaz-Diaz’s sentencing and under the recently revised version, a defendan t pre viously deported subsequent to a conviction for an aggravated felony is subject to a 16-level sentence enhancement. -14- a 16-level enhancement

when the deportation of a defendant alien occurred subsequent to his conviction for an aggravated felony. See U.S.S.G. § 2L1.2(b)(2) (1995). 6
Diaz-Diaz’s 1995 conviction in Hennepin County, Minnesota, for fif th degree sale of a con trolled substance meets the definition of an aggravated felony as contemplated in the ap plication notes to section 2L1.2. Thus, his pre-sentence report appropriatel y recommended the 16-level enhancemen t, bringing Diaz-Diaz’s total offense level to 24. Using a category III criminal history, the pre-sentence report then calculated a sentencing range of 63 to 78 months, and recommended a prison term of 63 months.
In granting Diaz-Diaz a downward departure, the district court stated:

Fir st, the defendant argues that the sixteen point increase in his bas e off ense level for a prior “aggravated felony” drastically overstates th e se riousness of the conduct underlying his state court conviction for fifth degree sale of a controlled s ubstance (marijuana) -- the felony upon which the increase is based. See U.S.S.G. § 2L1 .2(b)(1). The file reflects that in 1995 defendant was convicted of selling 8.3 grams of marijuana to a n under cover

police officer and sentenced to 22 days confinement, or tim e serve d, at the Hennepin County Workhouse. Defendant argues tha t increasing his total offense level by sixteen points based on this relatively benign convi ction would be unduly harsh and inappropriate. We agree. .

. . . While defendant’s state court fe lony conviction technically falls within the Guideline’s definition of an “aggravated felony,” his underlying-15-

conviction does not reflect the kind of grave offense that warrants such a heightene d sentence. Given the minuscule am ount of marijuana involved and the nominal sentence im posed, the Court concludes that a sixteen point increase in defendant’s total offense level would be unduly harsh and contrary to the intent of the Sentencing Commission.

Statement of Reasons for Imposing Sentence at 2-3. Disregarding Diaz-Diaz’s felony drug trafficking conviction, the district court employed a total offense level of 8 and a category II criminal history. The court then calculated a sentencing range of 4 to 1 0 months, and sentenced Diaz-Diaz to a 10-month term of imprisonment.
A district court is authorized to depart from the a pplicable Guidelines range when “the court finds that there e xists 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.” 18 U.S.C. § 3553(b); see also United States v. Hernandez-Reyes , 114 F.3d 800, 801 (8th Cir. 1 997). The Sentencing Commission’s policy statement regarding departure s approves of their use when factors exist in a particular case “that have not been given adequate consideration by the Commission,” or when, “in light of unusual circ umstances, the guidel ine level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. “In th e absence o f a characteristic or circumstance that distinguishes a case as sufficientl y atypical to warrant a sentence different from that called for under the guidelines, a sent ence outside the guideline range is not authorized.” Id. at cmt; see also Unite d States v. Wind , 128 F.3d 1276, 1277 (8th Cir. 1997). In pa rticular, “dissatisfaction with the availa ble sentencing range or a preference for a different sentence than tha t authoriz ed by the guidelines is not an appropriate basis for a sentence outside th e applicable guideline range.” U.S.S.G. § 5K2.0 at cmt.-16-

The Se ntencing Commission “forbids consideration of a few grounds fo r departur e, discourages or encourages use of some specific grounds, and does no t mention others.” United States v. Kapitzke , 130 F.3d 820, 822 (8th Cir. 1997) (citing Koon v . United States , 116 S. Ct. 2035, 2044 (1996)). If use of a certain factor i s discouraged, or encouraged but already taken into account in the applicable guideline, dep arture is permissible only if the factor is present to an exceptional degree o r distinguishes the case i n some other manner from the typical case in which the factor is present. See id . If a factor is unmentioned, departure on that basis is permissible only when the circumstances of the case are atypical in view of the stru cture and theory of the Guidelines. See id. “The court must bear in mind the Commission’s expectation that dep artures based on grounds not mentioned in the Guidelines will be ‘highl y infreq uent.’” Koon , 116 S. Ct. at 2045 (citing 1995 U.S.S.G. ch. 1, pt. A); see als o United States v. Drew , No. 97-2528WM, 1997 WL 781216 at *1 (8th Cir. Dec. 22 , 1997).

Sen tencing departure decisions are to be reviewed under a “unitary abuse-of

discretion” standard. Koon , 116 S. Ct. at 2048. Under such a standard, qu estions of law such as “whether a factor is a permissible basis for departure under any circumstances”
are review ed de novo. United States v. Kalb , 105 F.3d 426, 428 (8th Cir. 1997)

. However, a district court’s decision to depart from the Guidelines “will in most case s be due substantial deference.” Koon , 116 S. Ct. at 2046-48; see also Kalb , 105 F.3d at 428; Kapitzke , 130 F.3d at 822.
Under the version of section 2L1.2 applicable when Diaz-Diaz was sentenced, the presence of a prior deportation subsequent to an aggravated felony convictio n automatically triggered a mandatory 16-level enhancement. See United States v

. Polanco , 29 F.3d 35, 38 (2d Cir. 1994). Several circuits, in fact, have explicitly held that a departur e from this sentence enhancement based upon a perceived disparity between a 1 6-level enhancement and the seriousness of the underlying offense is impermissible as a matter of law. See United States v. Rios-Favela , 118 F.3d 653, 658-17-

(9t h Cir. 1997); United States v. Reyna-Espinosa , 117 F.3d 826, 830 (5th Cir. 1997) ; Amaya-Benetiz , 69 F.3d at 1247-49; Polanco , 29 F.3d at 38; Abreu-Cabrera , 64 F.3 d at 74-76.

On November 1, 1997, however, an amended version of section 2L1.2 becam e effective. See U.S.S.G. Appendix C, amendment 562 at p. 411-13 (November 1, 1997). The amended application notes to section 2L1.2 include the following provision:
Aggravated

felonies that trigger the adjustment from subsection (b)(1)(A) [the amended aggra

vated felony enhancement] vary widely. If subsection (b)(1)(A) appli es, and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence o r firearm s offense; and (C) the term of imprisonment imposed for suc h offense did not exceed one y ear, a downward departure may be warranted based on the seriousness of the aggravated felony.

U.S.S.G. § 2L1.2 cmt. (n.5) (1997). In the absence of any ex post facto concerns, the Sentencing Guidelines in effect at the time of sentencing will generally control. Se e United States v. Strange , 102 F.3d 356, 362 (8th Cir. 1996); United States v. Russell , 913 F.2d 1288, 1291 (8th Cir. 1990); 18 U.S.C. § 3553(a)(4) & (b); U.S.S.G. § 1B1.11(a) & (b)(1). “However, if a court applies an earlier edition of the Guideline s Manual, t he court shall consider subsequent amendments, to the extent that suc h amendments are cla

rifying rather than substantive changes.” U.S.S.G. § 1B1.11(b)(2). See also United States v. Downs , 123 F.3d 637, 643 (7th Cir. 1997).

The co mmentary to Amendment 562 describes the amendment as makin g “clarifying changes to the commentary.” U.S.S.G. Appendix C, amendment 562 at p. 413. Although one might disagree with this assessment,See, e.g. , Maul-Valverde , 10 F.3d at 547 (defendant’s pattern of entering th e 7 United S tates illegally, being arrested for non-immigration offenses, returning t o Mexico, and then illegally reentering the country demonstrates tha t his offense is within heartland of cases to which section 2L1.2(b) enhancement was intended to apply). -18- our role i s not to declare as an original matter whether [an amendment ] works a substantive or a clarifying change to the law in th is circuit; our role is merely to decide whether the Commission’s statement that [th e amendment] can be considered for retroactive use is plainly at odds with the Guidelines. United States v. Douglas , 64 F.3d 450, 452 (8th Cir. 1995) ( relying on Stinson v. United States , 508 U.S. 36, 45-46 (1993) (Guidelines amendments to be taken at face valu e unless plainly erroneous or inconsistent with Guidelines provision they explain o r amend))

. See also Braxton v. United States , 500 U.S. 344, 348 (1991) (Congres s cont emplated unusually limited role for courts in deciding extent of Guideline s amendme nt retroactivity); Russell , 913 F.2d at 1295 (McMillian, J., concurring in part and dissenting in part) (Commission’s statement that amendment to Guidelines wa s intended to be clarifying should be accorded substantial weight).

Because we can not say that the Commission’s determination that the changes to the commentary implemented by Amendment 562 are merely clarifying is plainly at odds with the Guidelines, we are obliged to apply the amendment retroactively in this case. See Dou glas , 64 F.3d at 452-53. Under the amended version of section 2L1.2, th e “seriousness of t

he aggravated felony” is an encouraged factor upon which a departure may be based. U.S.S.G. § 2L1.2 cmt. (n.5) (1997).

Alt hough we believe Diaz-Diaz’s situation to involve precisely the sort o f circumstan ces that the section 2L1.2(b) felony enhancement provision was intended to ad dress, “we are dealing with a fact-based judgment call that falls within the distric t

7 court’s sentencing discretion, and we are not permitted to substitute our judgment forThe district court addit ionally stated that it considered the defendant’s medical 8 condition as HIV-positive to be an alternative basis for its downward departure

. Because we affirm the district court’s exercise of discretion in granting a departur e based upon the nature of Diaz-Diaz’s underlying felony conviction, we need no t address this reason for departure. -19- that of the sentencing court.” Kapitzke , 130 F.3d at 824 (citing Koon , 116 S. Ct. a t 2046). Thus, we conc lude that the district court did not abuse its discretion in granting a downward departure based upon the now-encouraged factor of the seriousness of DiazDiaz’s underlying felony conviction. 8
The judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.