United States v. Zapien-Baca ( 2001 )


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  •          IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    Summary Calendar
    No. 00-50894
    USDC No. P-00-CR-119-1-F
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    MARTIN LOPEZ-AYALA, also known as Miguel Herrera-Torres,
    also known as Miguel Angel Herrera-Torres,
    Defendant-Appellee;
    ______________________
    Consolidated with
    No. 00-51161
    USDC No. P-00-CR-235-ALL-F
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    JAVIER CABRALES-LOPEZ,
    Defendant-Appellee;
    ____________________
    Consolidated with
    No. 00-51163
    USDC No. P-00-CR-239-ALL-F
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    CARMEN ORTIZ-BERNAL,
    Defendant-Appellee;
    No. 00-50894
    c/w Nos. 00-51161 & 00-51163 &
    00-51183 & 00-51185
    -2-
    ____________________
    Consolidated with
    No. 00-51183
    USDC No. P-00-CR-278-ALL
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    HECTOR OCTAVIO MENDOZA-GALLARDO,
    Defendant-Appellee;
    ____________________
    Consolidated with
    No. 00-51185
    USDC No. P-00-CR-234-ALL
    _____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    ALBERTO ZAPIEN-BACA,
    Defendant-Appellee.
    --------------------
    Appeals from the United States District Court
    for the Western District of Texas
    --------------------
    July 3, 2001
    Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    The United States appeals the district court’s downward departure
    in sentencing in these five consolidated appeals.    Each defendant
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 00-50894
    c/w Nos. 00-51161 & 00-51163 &
    00-51183 & 00-51185
    -3-
    pleaded guilty to an indictment charging illegal reentry, and the
    indictment neither alleged a prior aggravated felony conviction nor
    referenced subsection (b)(2) of 
    8 U.S.C. § 1326
    .              The Government
    argues that the district court abused its discretion in departing
    downward from the relevant guideline range and sentencing each of
    the five defendants to two-years’ imprisonment.               We vacate the
    sentences and remand for resentencing.
    Martin    Lopez-Ayala   argues   that   the   Government       failed   to
    preserve its objection, and therefore, review is for plain error.
    Our review of the appellate record reveals that the Government’s
    objection to application of Apprendi,1 including opposition to a
    downward departure, was sufficiently raised in the district court.
    While    downward   departures   are    reviewed   for    an   abuse    of
    discretion, see United States v. Hemmingson, 
    157 F.3d 347
    , 360 (5th
    Cir. 1998), district courts may depart downward from the applicable
    guideline range only when they find 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.”    
    18 U.S.C. § 3553
    (b); U.S.S.G. § 5K2.0, p.s.           “When a
    court finds an atypical case, one to which a particular guideline
    linguistically applies but [in which] conduct significantly differs
    from the norm, the court may consider whether a departure is
    warranted.”    U.S.S.G. Ch. 1, Pt. A 4(b), p.s.; see Koon v. United
    States, 
    518 U.S. 81
    , 93-100 (1996).          A departure is appropriate
    only in the extraordinary case that falls outside the “heartland”
    1
    Apprendi v. New Jersey, 
    530 U.S. 466
     (2000).
    No. 00-50894
    c/w Nos. 00-51161 & 00-51163 &
    00-51183 & 00-51185
    -4-
    of typical offenses covered by the relevant guideline.                      U.S.S.G.
    Ch. 1, Pt. A 4(b), p.s.
    Application of the abuse-of-discretion standard to a district
    court’s departure ruling may entail consideration of a question of
    law.    See Koon, 
    518 U.S. at 100
    .                In this situation, we give no
    deference to the district court’s underlying legal conclusion, but
    the abuse-of-discretion standard still applies.                 “A district court
    by definition abuses its discretion when it makes an error of law.”
    
    Id.
    The district court’s rationale for departing downward in these
    five cases was not based on the defendants’ conduct or on the
    unique circumstances surrounding the offenses of conviction.                      The
    court’s rationale was based on Apprendi which the court viewed as
    casting doubt on the continuing viability of controlling Supreme
    Court authority, Almendarez-Torres v. United States, 
    523 U.S. 224
    ,
    226-27 (1998).      In Almendarez-Torres, the Supreme Court held that
    the penalties of 
    8 U.S.C. § 1326
    (b) are sentencing enhancements and
    do not constitute a separate offense from 
    8 U.S.C. § 1326
    (a) and
    that   “neither     the   statute       nor   the    Constitution   requires      the
    Government    to   charge   the     .    .    .    earlier   conviction[]    in   the
    indictment.”       
    523 U.S. at 226-27
    .             The district court concluded
    that    the   question      concerning            Almendarez-Torres’   continuing
    viability was sufficient to take these five convictions out of the
    heartland of illegal reentry cases for purposes of sentencing.
    Apprendi did not overrule the holding of Almendarez-Torres.
    See Apprendi, 
    530 U.S. at 489-90
    ; United States v. Chapa-Garza, 243
    No. 00-50894
    c/w Nos. 00-51161 & 00-51163 &
    00-51183 & 00-51185
    -5-
    F.3d 921, 928 (5th Cir. 2001).       The guidelines implement the
    sentencing enhancement provision of 
    8 U.S.C. § 1326
    (b)(2) through
    U.S.S.G. § 2L1.2(b)(1)(A).   United States v. Nava-Perez, 
    242 F.3d 277
    , 278 (5th Cir. 2001), petition for cert. filed, (May 11, 2001)
    (No. 00-9979).   The district court erred in its underlying legal
    conclusion and disregarded controlling authority.       Without the
    erroneous underlying legal conclusion concerning the affect of
    Apprendi upon Almendarez-Torres, there is nothing to take the five
    cases outside the heartland of illegal-reentry cases.    See United
    States v. Grosenheider, 
    200 F.3d 321
    , 334 (5th Cir. 2000).     Thus,
    the district court abused its discretion in downwardly departing
    from the relevant guideline range.   See Koon, 
    518 U.S. at 111
    .
    We vacate the sentences and remand for resentencing not
    inconsistent with this opinion.
    SENTENCES VACATED AND CAUSES REMANDED FOR RESENTENCING.