F I L E D
United States Court of Appeals
Tenth Circuit
MAY 3 2000
PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 99-1270
v.
HECTOR MARQUEZ-GALLEGOS,
also known as Hector Marquez-Reyes,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 99-CR-1-S)
Vicki Mandell-King, Assistant Federal Public Defender, Denver, Colorado,
(Michael G. Katz, Federal Public Defender, Denver, Colorado with her on the
brief), for Defendant-Appellant.
Sheilah M. Rogers, Assistant United States Attorney, District of Colorado,
(Thomas L. Strickland, United States Attorney, District of Colorado, with her on
the brief), for Plaintiff-Appellee.
Before MURPHY, ALARCÓN, *and PORFILIO, Circuit Judges.
_________________________
ALARCÓN, Circuit Judge.
_________________________
Hector Marquez-Gallegos (“Marquez”) appeals from a sentence imposed by
the district court after he pled guilty to a charge of unlawful reentry. His
sentence for that offense was enhanced because he previously had been deported
after an aggravated felony conviction. We have jurisdiction to review Marquez’s
sentence under 18 U.S.C. § 3742 and we affirm.
I
On February 20, 1998, Marquez was arrested in Denver, Colorado, for
possessing what the arresting officer characterized as a “small quantity” of
powder cocaine. He pled guilty in Denver County District Court to possession of
a controlled substance, a felony. On April 6, 1998, Marquez was sentenced to
three years’ imprisonment for that offense. Execution of the sentence was
suspended on the condition that Marquez cooperate with the Immigration and
Naturalization Service. Marquez was deported on May 22, 1998.
On December 8, 1998, Marquez was again arrested in Denver. On January
*
The Honorable Arthur L. Alarcón, Senior United States Circuit Judge
for the Ninth Circuit, sitting by designation.
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5, 1999, Marquez was indicted on one count of unlawful reentry in violation of
8 U.S.C. § 1326(a). He entered a guilty plea on March 11, 1999.
On June 2, 1999, Marquez was sentenced to a term of seventy months’
imprisonment and three years of supervised release. A conviction for unlawful
reentry typically carries a maximum penalty of two years’ imprisonment. See
8 U.S.C. § 1326(a). Marquez’s sentence, however, reflected an enhancement
under United States Sentencing Guidelines Manual § 2L1.2, which establishes a
base offense level of eight for unlawful reentry and a sixteen-level enhancement
where the “defendant previously was deported after a criminal conviction . . .
[and] the conviction was for an aggravated felony.” U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A) (1999). Marquez requested a downward departure on
the basis of the lack of seriousness of his underlying aggravated felony. The
district court denied the request.
II
The district court concluded that, as a matter of law, it lacked discretion to
grant a downward departure on the basis of the seriousness of Marquez’s
underlying aggravated felony. The district court also expressed doubt as to
whether, even if it had the discretion, it would grant a downward departure in
Marquez’s particular circumstances. The district court did not, however, go so far
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as to say that it would not have departed downward on the basis of Marquez’s
particular circumstances. We conclude that we have jurisdiction to review the
district court’s decision that it lacked discretion to depart downward. See United
States v. Fagan, 162 F.3d 1280, 1282 (10th Cir. 1998) (noting that this court may
review a sentencing court’s refusal to depart downward where it is based on the
court’s conclusion that it lacks discretion to do so). We review de novo the legal
conclusions underlying the district court’s refusal to depart downward. Id. at
1283.
III
Application Note 5 to § 2L1.2 provides that
[a]ggravated felonies that trigger [the sixteen-level enhancement]
vary widely. If [an aggravated felony conviction triggers the
sixteen-level enhancement], 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. Sentencing Guidelines Manual § 2L1.2 commentary at n.5 (1999) (emphasis
added). Marquez was ineligible for a downward departure under Application
Note 5 because he was sentenced to a term of three years’ imprisonment for his
underlying aggravated felony. Under the law of this circuit, the fact that
Marquez’s three-year sentence was suspended is irrelevant. See United States v.
Chavez-Valenzuela, 170 F.3d 1038, 1039-40 (10th Cir. 1999) (holding that “the
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term of imprisonment” for purposes of Application Note 5 is the sentence
imposed by the state court and that it shall not be decreased to reflect a
suspension of any part of the sentence).
We do not consider here the merits of Marquez’s argument that this court
should revisit this issue and overrule Chavez-Valenzuela. A three-judge panel
may not overrule circuit precedent. See United States v. Alvarez , 142 F.3d 1243,
1247 (10th Cir. 1998). “The proper avenue for raising th[is] issue[] lies in a
petition for en banc review.” United States v. Splawn , 963 F.2d 295, 297 (10th
Cir. 1992).
We do, however, consider Marquez’s argument that the district court erred
in failing to recognize its discretion to depart downward under § 5K2.0. Under
§ 5K2.0,
the sentencing court may impose a sentence outside the range
established by the applicable guidelines, if 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.”
U.S. Sentencing Guidelines Manual § 5K2.0 (1999) (quoting 18 U.S.C. § 3553
(b)). Before a departure from the applicable Guideline is permitted under
§ 5K2.0, however, “certain aspects of the case must be found unusual enough for
it to fall outside the heartland of cases in the Guideline.” Koon v. United States,
518 U.S. 81, 98 (1996). Where the factor in issue is one already taken into
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account by the applicable Guideline and adjustments, departure from the
Guideline is permissible only if that factor is present in a manner or degree
unusual enough to distinguish the case from the “heartland” of cases covered by
the Guideline. See § 5K2.0.
The spectrum of aggravated felonies that may lead to a sixteen-level
enhancement extends from the gravest of offenses to relatively minor ones. See
§ 2L1.2 commentary at n.1 (1999) (incorporating by reference the definition of
“aggravated felony” found at 8 U.S.C. § 1101(a)(43)). In cases where the
aggravated felony is relatively minor, the one-size-fits-all, sixteen-level
enhancement of § 2L1.2(b)(1)(A) may result in a disproportionately harsh
sentence. It is clear on the face of Application Note 5 that the Sentencing
Commission is aware of this risk. See § 2L1.2 commentary at n.5. (“Aggravated
felonies that trigger the [sixteen-level enhancement] vary widely.”).
Indeed, the Sentencing Commission accounted for this risk to the extent it
deemed fit in Application Note 5, which encourages downward departures based
on the lack of seriousness of the underlying aggravated felony. The Commission
set forth in Application Note 5 three criteria to be used in identifying those
defendants who may be at risk of receiving a disproportionately harsh sentence:
“(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
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imprisonment imposed for such offense did not exceed one year.” § 2L1.2
commentary at n.5 (1999). As noted above, Marquez does not fall within the
class of defendants delineated in Application Note 5 because he was sentenced to
three years’ imprisonment for his aggravated felony.
A downward departure under § 5K2.0 would only be permissible if
Marquez’s case could be said to fall outside of the “heartland” of cases of
unlawful reentry subsequent to an aggravated felony. See Koon, 518 U.S. at 98.
We are persuaded that the Sentencing Commission, in promulgating Application
Note 5, implicitly defined the “heartland” of such cases to be all those not falling
within the class delineated therein. Because Marquez’s case therefore was within
the heartland of § 2L1.2(b)(1)(A), we hold that the district court did not err in
concluding that it lacked discretion to depart under § 5K2.0.
Our holding is consistent with a recent decision of the Second Circuit Court
of Appeals that squarely confronted the same question. See United States v.
Tappin, 205 F.3d 536 (2nd Cir. 2000). Dennis Tappin had two aggravated felony
convictions prior to his unlawful reentry. See id. at 539. He conceded that he
therefore failed to satisfy one of the three criteria of Application Note 5. Id. He
argued that the district court nevertheless had discretion to grant a downward
departure on the basis of the lack of seriousness of his aggravated felonies
because his case was sufficiently unusual to fall outside the heartland of unlawful
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reentry cases. Id. at 539-41. The court rejected this argument, reasoning that,
[t]he Sentencing Commission stated explicitly that departure on the
ground of seriousness of the predicate aggravated felony may be
appropriate when a defendant meets all three enumerated criteria in
[Application Note 5]. By necessary implication, therefore, the
Sentencing Commission intended that all other cases . . . should be
treated as within the heartland of illegal reentry cases under
§ 2L1.2(b)(1)(A), and that downward departure in such cases on the
ground of seriousness of the predicated aggravated felony would be
improper.
Id. at 540-41. The court affirmed the district court’s refusal to depart downward.
Id. at 543.
We agree with the Second Circuit that a contrary conclusion would render
Application Note 5 “effectively meaningless.” Id. at 541. To hold otherwise
would also second-guess the conscious policy choices of Congress and the
Sentencing Commission, an activity in which we are not at liberty to engage. See
Koon, 518 U.S. at 92-93 (citing 18 U.S.C. § 3553(b)). We recognize, however, as
the Second Circuit did in Tappin, that our holding may be in tension with
decisions of three other circuits. See id. at 541 n.7 (citing United States v.
Alfaro-Zayas, 196 F.3d 1338, 1342-43 (11th Cir. 1999); United States v. Sanchez-
Rodriguez, 161 F.3d 556, 562-63 n.12 (9th Cir. 1998) (en banc); United States v.
Diaz-Diaz, 135 F.3d 572, 579-82 (8th Cir. 1998)).
None of these circuits squarely held that a downward departure on the basis
of the lack of seriousness of the underlying aggravated felony is permissible
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under § 5K2.0 where the defendant failed to qualify for a downward departure
under Application Note 5. See Alfaro-Zayas, 196 F.3d at 1342-44 (affirming the
district court’s conclusion that it lacked discretion to depart downward where the
defendant did not satisfy the three criteria of Application Note 5 and no other
findings in the record suggested the case fell outside the heartland of
§ 2L1.2(b)(1)(A)); Sanchez-Rodriguez, 161 F.3d at 561-63 (where the unlawful
reentry occurred prior to the 1997 amendment of § 2L1.2 to include the three
criteria of Application Note 5, concluding “without reference to the new
amendment” that the district court did not abuse its discretion in granting a
downward departure on the basis of the seriousness of the aggravated felony, an
“unmentioned factor” in the Guideline); Diaz-Diaz, 135 F.3d at 580-82 (in a case
where the defendant did not satisfy the three criteria of Application Note 5 but his
reentry preceded the 1997 amendment of § 2L1.2, holding that the district court
did not abuse its discretion in granting a downward departure under § 5K2.0 on
the basis of the seriousness of the aggravated felony). To the extent that our
holding is at odds with dicta in those decisions, we decline to follow them.
AFFIRMED.
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