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.

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Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

Fernando Diaz-Diaz appeals from the judgment of conviction entered by the

district court following a jury verdict finding Diaz-Diaz guilty of the offense of

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 made

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 voluntarily 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-Diaz

accumulated a substantial criminal history. In 1978, Diaz-Diaz was convicted of

resisting a peace officer in River Forest, Illinois. In 1985, he was convicted of

possession of a stolen motor vehicle in Arlington Heights, Illinois, and was

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

abandoned house and forced her to have sexual intercourse with him. A plea

agreement resulted in his conviction for sexual battery.
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By 1992, Diaz-Diaz was residing in Minnesota, where his criminal activities

continued. In June of that year, Diaz-Diaz was convicted of theft. In March of 1994,

he was convicted of consuming alcohol in a public place. In July of 1995, Diaz-Diaz

sold 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 was

convicted of the sale of a controlled substance. Finally, in February of 1996, police

were called to a residence in Minneapolis to investigate a murder. Witnesses reported

that Diaz-Diaz had stabbed the victim in the abdomen. The police officers found DiazDiaz unconscious and slumped in a chair in the basement. One of his hands was

stained with blood, and blood was splattered 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 district court on one count

of illegal reentry in violation 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, the

defendant, Fernando Diaz-Diaz, an alien who had previously been

arrested and deported two times from the United States pursuant to law,

knowingly and unlawfully entered the United States, having not obtained

the consent of the Attorney General of the United States 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—

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Prior to trial, Diaz-Diaz proposed a jury instruction regarding venue that would

have informed the jury that the government must prove by a preponderance of the

evidence that the offense charged “was 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 judgment 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 motion 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-Diaz

faced a range of imprisonment of 63 to 78 months under the applicable sentencing

guidelines. For reasons set forth later in this opinion, the district court sentenced DiazDiaz to 10 months’ imprisonment, 3 years of supervised release, $50 special

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 once

again, he 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 to

reenter the United States 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 has departed the United States while an order of exclusion or

deportation is outstanding, and thereafter

 (2) enters, attempts to enter, or is at any time found in, the United

States, unless (A) prior to his reembarkation at a place outside the United

States or his application for admission from foreign contiguous territory,

the Attorney General has expressly consented to such alien’s reapplying

for admission; or (B) with respect to an alien previously excluded and

deported, unless such alien shall establish that he was not required to

obtain such advance consent under this chapter or any prior Act,

shall be fined under Title 18, or imprisoned not more than 2 years, or

both.

Subsection (b) of section 1326 provides for sentence enhancements when an alien

reenters illegally following his deportation subsequent to a conviction for the

commission of certain criminal offenses.

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committed in three distinct manners: a previously deported alien may violate section

1326 by, without the Attorney General’s permission, (1) entering, (2) attempting to

enter, or (3) being found in the United States.” Id. at 1033-34. Entry and attempted

entry generally occur when an illegal alien enters or attempts to enter through a

recognized port of entry. See id. In contrast, being found in the United States

typically, though not necessarily, involves a surreptitious entry by the alien and is a

continuing violation that is not complete until he is discovered by immigration

authorities. See id. at 1034-35; United States v. Ortiz-Villegas, 49 F.3d 1435, 1436

(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)

(deported alien could be convicted of being “found in” United States regardless of

surreptitious entry).
18 U.S.C. § 666 (1988). 3

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Diaz-Diaz first challenges the sufficiency of the evidence. Because he was

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 he should have been so charged. Instead, the indictment alleged that Diaz-Diaz

“entered” the United States “on or about June 11, 1996, in the State and district of

Minnesota.” Diaz-Diaz thus argues that the government did not prove the elements of

the offense as charged in the indictment, proving only that he was apprehended in

Minnesota and not that he entered in Minnesota.

Although we agree with Diaz-Diaz that the record contains no evidence that his

reentry into the United States occurred in Minnesota, we are also satisfied that the

indictment was sufficient to charge him with the offense of illegal reentry. An indictment

is sufficient if it: (1) contains the elements of the charged offense and fairly informs the

defendant of the charge against which he must defend; and (2) enables him to plead

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); Fed. R. Crim. P. 7(c)(1). Unless an indictment is so defective that by no

reasonable construction can it be said to charge the offense for which the defendant was

convicted, it will be upheld. See Pemberton, 121 F.3d at 1169. When the issue is

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 sufficiency of an indictment that neglected to allege

an agency relationship between the defendant and the Leech Lake Band of Chippewa

Indians, an element of the offense outlined 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
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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 the 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. See 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).

The nature of the difficulty here, as in Pemberton, is “one of form rather than

substance.” 121 F.3d at 1169. Although the indictment might well have stated that

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 he

had been charged. First, as in Pemberton, the indictment specifically referenced the

appropriate statute, 8 U.S.C. § 1326, which contains the “found in” language that is

missing from the charge. Second, the text of section 1326 was included within the

instructions provided to the jury. Instruction number fourteen, moreover, which

identified the essential elements to be proved, instructed the jury to determine not

whether Diaz-Diaz illegally “entered in Minnesota” or was “found,” but whether he had

“reentered the United States.”

Similarly, the indictment stated that Diaz-Diaz “knowingly and unlawfully entered

the United States.” As the Eleventh Circuit has noted, the fact that an illegal entry is

“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 enter 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 reasonable reading of the indictment as a whole, including the statutory reference,

should have alerted Diaz-Diaz that he was accused of having unlawfully reentered the

United States and of having been found therein. Cf. Campos-Asencio, 822 F.2d at 508

(indictment charging illegal reentry after deportation
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sufficiently alleged element of lack of consent by Attorney General to reenter, where

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 to

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 was convicted.” Pemberton, 121 F.3d at 1169; see also United States v.

Davis, 103 F.3d 660, 675 (8th Cir. 1996), cert. denied, 117 S. Ct. 2424 (1997) (mere

variance between indictment and proof “which occurs when the charging terms are left

unaltered but the evidence offered at trial proves facts different from those alleged in the

indictment” does not require reversal of conviction unless variance results in actual

prejudice). 

Because the indictment was minimally adequate to charge Diaz-Diaz with having

been found in the United States in violation of the illegal reentry statute, his challenge

to the sufficiency 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 that

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 guilt

beyond a reasonable doubt. See id.

We have held that an alien is “found in” the United States when that alien is

“discovered in” the United States by immigration authorities. See Gomez, 38 F.3d at

1036. “Discovery” in this context consists of two elements: (1) the discovery of a

previously deported alien’s physical presence in the United States; and (2) the

ascertainment of the identity and status of the alien. See id.; United States v. RiveraVentura, 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
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authorities after his arrest in Minneapolis for second degree murder. His presence and

identity were clearly established. Moreover, the record demonstrates that Diaz-Diaz was

here without the permission of the Attorney General and had been deported on two prior

occasions. Because a reasonable jury could have concluded Diaz-Diaz was guilty of

illegal reentry beyond a reasonable doubt, his challenge to the sufficiency of the evidence

cannot succeed.

III.

Diaz-Diaz contends that the government failed to prove venue and that he was

prejudiced 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 evidence. 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 district court relied on the general venue statute in Title 8 to rule that venue

was proper. Section 1329 of Title 8 prescribes the appropriate venue for section 1326

prosecutions: “Notwithstanding any other law, such prosecutions or suits may be

instituted at any place in the United States at which the violation may occur or at which

the person charged with a violation under 1325 or 1326 of this title may be

apprehended.” Id. (emphasis supplied). In dicta, the Supreme Court has characterized

section 1329 as authorizing the prosecution of illegal entry cases at the place of

apprehension. See United States v. Cores, 356 U.S. 405, 408 n.6 (1958).

In response, Diaz-Diaz contends that the particularity of the indictment, which

charged him specifically with “entering” the United States in the district of Minnesota,

requires those specifics of venue alleged to be proved. He reminds us of the

constitutional requirement that the trial of all crimes “shall be held in the State where
U.S. CONST. art. III, § 2. See also U.S. CONST. amend. VI. 4

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the said Crimes 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 deported alien enters

or attempts to enter through 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 authorize 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 sufficiently 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 entry and 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 establishes that Diaz-Diaz was

discovered in Minnesota in 1996. Thus, his prosecution in that 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 proposed

instruction. See United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985).

IV.

The government 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 his

entire sentence and has been deported.

The Supreme Court has stated that an appeal by the government relating to the

merits of a deported alien’s conviction is justiciable:
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That respondents have been deported likewise does not remove the

controversy involved. Following a reversal of the Court of Appeals, there

would be a possibility that respondents could be extradited and imprisoned

for their crimes, or if respondents manage to re-enter this country on their

own they would be subject to arrest and imprisonment for these

convictions.

United States v. Villamonte-Marquez, 462 U.S. 579, 581 n.2 (1983). Taking guidance

from the Court’s willingness in Villamonte-Marquez “to let speculative contingencies

prevent the mootness of a government criminal appeal,” the Ninth Circuit has held

justiciable an appeal from the sentence of an alien who had completed his sentence and

been deported. United States v. Valdez-Gonzalez, 957 F.2d 643, 647 (9th Cir. 1992).

In doing so, however, the court specifically reserved the question of mootness regarding

the reversal of a sentence for an alien who has served his sentence and exited the

country:

We note, however, that in Villamonte, the Court’s reversal of the

court of appeals simply led to reinstatement of the defendant’s

conviction and sentence. [citation omitted]. In the present case,

however, any decision other than one affirming the lower court

would necessitate resentencing, and possibly preparation of a new

sentence report. Whether such proceedings should or could be

carried on during a defendant’s absence is a question not presently

before us.

Id. at 647 n.1.

Relying on the Ninth Circuit’s opinion, the Sixth Circuit has held that the

government’s appeal of a downward departure was not rendered moot by the

defendant’s completion 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 resentencing). The Second Circuit has similarly
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held that a defendant’s deportation did not moot the government’s appeal of a downward

departure 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 the

detention of an alien defendant beyond the service of his sentence pending appeal of that

sentence by the government. See United States v. Maul-Valverde, 10 F.3d 544, 547 n.2

(8th Cir. 1993).

We agree with the Second, Sixth, and Ninth Circuits that Villemonte-Marquez

provides support for the proposition that the deportation of a defendant who has

completed his sentence does not automatically moot the government’s appeal of a

downward departure in sentencing. 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

government 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 years 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)

(deportation of defendant does not terminate sentence of supervised release); United

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 within 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 his

presence otherwise comes to the attention of the government, he would be subject to

incarceration or some alternative form of governmental supervision pursuant to the

conditions 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 remote
Like the Ninth Circuit, we limit our holding on the question of mootness to the 5

circumstances of this case. See Valdez-Gonzalez, 957 F.2d at 647 n.1. As a result of

our conclusion in Part V of this opinion that the district court did not commit an abuse

of discretion in granting a downward departure to Diaz-Diaz, his sentence is simply

affirmed. Whether an alien defendant who has completed his sentence and has been

deported may be resentenced in absentia by the district court, pursuant to a reversal of

his sentence on appeal, is a question we need not now address. Similarly, we note that

the question whether the government may appeal the sentence of a deported alien after

his term of supervised release has expired is an issue not presently before us.

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that it should prohibit 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 violation warrants a much more severe penalty when committed subsequent to

deportation following a criminal conviction. See Maul-Valverde, 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 authorized 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 heightened gravity of an illegal reentry subsequent to a criminal

conviction. See Maul-Valverde, 10 F.3d at 545; United States v. Abreu-Cabrera, 64

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 unlawfully

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 to
Section 2L1.2 of the Guidelines has been revised by an amendment effective

6

November 1, 1997. However, both under the version of section 2L1.2 in effect at the

time of Diaz-Diaz’s sentencing and under the recently revised version, a defendant

previously deported subsequent to a conviction for an aggravated felony is subject to

a 16-level sentence enhancement.

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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 fifth degree sale

of a controlled substance meets the definition of an aggravated felony as contemplated

in the application notes to section 2L1.2. Thus, his pre-sentence report appropriately

recommended the 16-level enhancement, 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:

First, the defendant argues that the sixteen point increase in his base

offense level for a prior “aggravated felony” drastically overstates the

seriousness of the conduct underlying his state court conviction for fifth

degree sale of a controlled substance (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 an

undercover police officer and sentenced to 22 days confinement, or time

served, at the Hennepin County Workhouse. Defendant argues that

increasing his total offense level by sixteen points based on this relatively

benign conviction would be unduly harsh and inappropriate. We agree. .

. . .

While defendant’s state court felony conviction technically falls within the

Guideline’s definition of an “aggravated felony,” his underlying
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conviction does not reflect the kind of grave offense that warrants such a heightened

sentence. Given the minuscule amount of marijuana involved and the nominal sentence

imposed, 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 10

months, and sentenced Diaz-Diaz to a 10-month term of imprisonment.

A district court is authorized to depart from the applicable Guidelines range when

“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.”

18 U.S.C. § 3553(b); see also United States v. Hernandez-Reyes, 114 F.3d 800, 801 (8th

Cir. 1997). The Sentencing Commission’s policy statement regarding departures

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 circumstances,

the guideline level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. “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.” Id. at cmt; see also United

States v. Wind, 128 F.3d 1276, 1277 (8th Cir. 1997). In particular, “dissatisfaction with

the available sentencing range or a preference for a different sentence than that

authorized by the guidelines is not an appropriate basis for a sentence outside the

applicable guideline range.” U.S.S.G. § 5K2.0 at cmt.
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The Sentencing Commission “forbids consideration of a few grounds for

departure, discourages or encourages use of some specific grounds, and does not

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 is

discouraged, or encouraged but already taken into account in the applicable guideline,

departure is permissible only if the factor is present to an exceptional degree or

distinguishes the case in 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 structure and theory of the

Guidelines. See id. “The court must bear in mind the Commission’s expectation that

departures based on grounds not mentioned in the Guidelines will be ‘highly

infrequent.’” Koon, 116 S. Ct. at 2045 (citing 1995 U.S.S.G. ch. 1, pt. A); see also

United States v. Drew, No. 97-2528WM, 1997 WL 781216 at *1 (8th Cir. Dec. 22,

1997).

Sentencing departure decisions are to be reviewed under a “unitary abuse-ofdiscretion” standard. Koon, 116 S. Ct. at 2048. Under such a standard, questions of law

such as “whether a factor is a permissible basis for departure under any circumstances”

are reviewed 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 cases

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 conviction

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 departure from this sentence enhancement based upon a perceived disparity between

a 16-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
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(9th 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.3d

at 74-76.

On November 1, 1997, however, an amended version of section 2L1.2 became

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 aggravated felony enhancement] 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.

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. See

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 Guidelines

Manual, the court shall consider subsequent amendments, to the extent that such

amendments are clarifying 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 commentary to Amendment 562 describes the amendment as making

“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 the

7

United States illegally, being arrested for non-immigration offenses, returning to

Mexico, and then illegally reentering the country demonstrates that his offense is within

heartland of cases to which section 2L1.2(b) enhancement was intended to apply).

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our role is not to declare as an original matter whether [an amendment]

works a substantive or a clarifying change to the law in this circuit; our role

is merely to decide whether the Commission’s statement that [the

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 value

unless plainly erroneous or inconsistent with Guidelines provision they explain or

amend)). See also Braxton v. United States, 500 U.S. 344, 348 (1991) (Congress

contemplated unusually limited role for courts in deciding extent of Guidelines

amendment retroactivity); Russell, 913 F.2d at 1295 (McMillian, J., concurring in part

and dissenting in part) (Commission’s statement that amendment to Guidelines was

intended to be clarifying should be accorded substantial weight).

Because we cannot 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 Douglas, 64 F.3d at 452-53. Under the amended version of section 2L1.2, the

“seriousness of the aggravated felony” is an encouraged factor upon which a departure

may be based. U.S.S.G. § 2L1.2 cmt. (n.5) (1997).

Although we believe Diaz-Diaz’s situation to involve precisely the sort of

circumstances that the section 2L1.2(b) felony enhancement provision was intended to

address, “we are dealing with a fact-based judgment call that falls within the district

7

court’s sentencing discretion, and we are not permitted to substitute our judgment for
The district court additionally 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 departure

based upon the nature of Diaz-Diaz’s underlying felony conviction, we need not

address this reason for departure.

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that of the sentencing court.” Kapitzke, 130 F.3d at 824 (citing Koon, 116 S. Ct. at

2046). Thus, we conclude 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.