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.
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Appeals from the United States District Court
for the Western District of Texas
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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this opinion should not be published and is not precedent except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
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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
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00-51183 & 00-51185
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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
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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.