United States v. Ortiz-De-Mundo , 51 F. App'x 894 ( 2002 )

[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 01-2465
UNITED STATES,
Appellee,
v.
BELKIS ALTAGRACIA ORTIZ-DE MUNDO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Lynch, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Joseph C. Laws, Jr., Federal Public Defender, and Yasmin A.
Irizarry, Assistant Federal Public Defender, on brief for
appellant.
H.S. Garcia, United States Attorney, Sonia I. Torres-Pabon,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.
December 9, 2002
Per Curiam. Defendant-appellant Belkis Altagracia Ortiz-De
Mundo appeals from the district court's refusal to grant a downward
departure pursuant to U.S.S.G. § 2L1.2, Application Note 5 (2000).
The government argues that this court lacks jurisdiction to
review the sentencing court's refusal to grant the departure
because it was merely an exercise of its discretion. "[A]n appeal
lies if the departure decision is based on an assessment that the
sentencing court is powerless to depart on the grounds alleged by
the proponent, but not if the court simply declines to exercise its
discretionary power to depart." United States v. Morrison, 46 F.3d
127, 130 (1st Cir. 1995)(emphasis in original).
"When determining whether the sentencing court merely refused
to exercise its discretionary power to depart, we consider the
totality of the record and the sentencing court's actions as
reflected therein." Id. The transcript of the sentencing hearing
clearly indicates that the sentencing court believed that a
departure was impermissible under § 2L1.2 because one of the
requirements of Application Note 5 (concerning length of the
sentence imposed for the previous conviction) had not been met.
Its ambiguous statement that "if I don't exercise it, there would
still be no question about it," absent any reference to facts which
made such a departure unjustified in this case, does not deprive
this court of jurisdiction. Compare United States v. Jackson, 93
F.3d 335, 338 (7th Cir. 1996) (holding that court lacked
jurisdiction "where the district court unambiguously indicates that
2
it would not depart from the sentence, even if it had authority to
do so") (emphasis added). We find that this court has jurisdiction
to review the district court's determination that it lacked
authority to depart pursuant to § 2L1.2, Application Note 5.
Application Note 5 permits a downward departure if §
2L1.2(b)(1)(A) applies and three other requirements are met. The
PSR in this case indicates that the relevant subsection applied and
that all three of the other requirements of Application Note 5 were
met. The district court erred in concluding that the requirement
that the term of imprisonment imposed for the aggravated felony
which triggered the 16-level increase under subsection (b)(1)(A)
"not exceed one year" was not met in this case. The PSR indicates
(and the district court found) that the relevant prison sentence
imposed was one year. Therefore, the sentencing court had
authority to grant a departure from the guideline sentencing range
pursuant to Application Note 5 "based on the seriousness of the
aggravated felony." § 2L1.2, comment. (n.5). Its conclusion to the
contrary was erroneous.
The sentence is vacated and the case is remanded for
resentencing.1 See Loc.R. 27(c).
1
We note that on remand for resentencing the current
Sentencing Guidelines, including the amended version of § 2L1.2,
apply. See, e.g., United States v. Kirkham, 195 F.3d 126, 132 n.5
(2d Cir. 1999).
3