United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 24, 2004
September 9, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
-------------------------------- Clerk
No. 03-20960
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UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
DANIEL BARRERA-SAUCEDO,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE and PICKERING, Circuit Judges, and LYNN,*
District Judge.
LYNN, J: District Judge
Appellant Daniel Barrera-Saucedo appeals the district
court’s sentence on two grounds. The first ground is that the
district court erred in concluding that it had no authority to
depart downward for the time Barrera-Saucedo had served in state
custody after immigration authorities found him. The second
ground is that the “felony” and “aggravated felony” provisions
found at 8 U.S.C. § 1326(b)(1) and (b)(2) are facially
unconstitutional. Finding error as to the first ground, we
*
District Judge for the Northern District of Texas, sitting
by designation.
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vacate the sentence and remand this case for the limited purpose
of allowing the trial court to apply the law now stated, to
determine whether Barrera-Saucedo is entitled to an additional
downward departure for time spent in state custody.
I. FACTS AND PROCEDURE
Daniel Barrera-Saucedo is a citizen of Mexico. On November
10, 1998, after serving a state term of imprisonment, Barrera-
Saucedo was deported from Texas to Mexico. He later returned to
the United States and was again arrested, prosecuted, and
convicted. While serving time in state prison for two drug
related offenses and criminal mischief, on June 4, 2002,
immigration authorities located Barrera-Saucedo in the Texas
Department of Criminal Justice - Institutional Division in
Huntsville, Texas. However, Barrera-Saucedo was not released to
immigration authorities until March 26, 2003, and was not placed
in the custody of the United States Marshals Service until May 9,
2003. On June 13, 2003, Barrera-Saucedo pled guilty to illegal
re-entry after deportation.
At sentencing, Barrera-Saucedo moved for a downward
departure on three grounds: (1) special family circumstances; (2)
time served in state custody after he was found by immigration
authorities on June 4, 2002; and (3) time served in INS custody
between March 26, 2003 and May 9, 2003. The district court
declined to grant a departure for family circumstances but
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granted Barrera-Saucedo’s request for credit for the forty-four
days he spent in INS custody. In response to the downward
departure motion for time Barrera-Saucedo spent in state custody,
the district court stated: “I think that I am prohibited from
giving credit for the time that Mr. Barrera-Saucedo was in state
custody serving his state sentence.” When imposing the sentence,
the district court also stated:
if the Bureau of Prisons for any reason
decides to release prisoners early, I
recommend that they do so in this case. I
don’t think that the crimes that were
committed are much more than a person trying
to support a drug habit.
The court sentenced Barrera-Saucedo to forty-six months
imprisonment, less the days he spent in INS custody, for a total
of forty-four months and sixteen days.
II. STANDARD OF REVIEW
This Court reviews a district court’s application of the
Sentencing Guidelines de novo, but its factual findings for clear
error. United States v. Rivera, 265 F.3d 310, 311 (5th Cir.
2001). The Guidelines authorize district courts to depart in
cases that feature aggravating or mitigating circumstances of a
kind or degree not adequately taken into consideration by the
Sentencing Commission. Koon v. United States, 518 U.S. 81, 94
(1996). Whether a particular factor is a permissible basis for
departure is a question of law. Id. at 98-100. This Court has
jurisdiction to review a district court’s refusal to grant a
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downward departure from the Guidelines only if the refusal was
based on an error of law. United States v. Buck, 324 F.3d 786,
797 (5th Cir. 2003). Thus, this Court may review the district
court’s decision only if it refused a downward departure on the
mistaken conclusion that the Guidelines do not permit such a
departure. Id. at 797-98.
III. DISCUSSION
Barrera-Saucedo appeals the district court’s sentence on two
grounds. First, Barrera-Saucedo argues the district court erred
in concluding that it had no authority to downwardly depart for
the time Barrera-Saucedo had served on a state sentence after
being discovered by immigration authorities. Second, Barrera-
Saucedo contends that the “felony” and “aggravated felony”
provisions found at 8 U.S.C. § 1326(b)(1) and (b)(2) are
facially unconstitutional.
A. Downward Departure
There is no statutory authority for district courts to award
credit against federal sentences for time spent in state custody.
See United States v. Wilson, 503 U.S. 329, 333-37 (1992). To the
contrary, Congress has granted such authority to the Attorney
General, through the Bureau of Prisons, pursuant to 18 U.S.C. §
3585(b).
Although a sentencing court may not give credit for time
served in state custody, this Court has not yet addressed the
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issue of whether a court may downwardly depart for time served.
Though an issue of first impression in the Fifth Circuit, both
the Second and Ninth Circuits have held that a downward departure
may be appropriate on such ground. Specifically, both circuits
have held that a downward departure may be granted based on a
defendant’s lost opportunity to serve his federal sentence
concurrently with his state sentence due to the delay in
commencing federal proceedings after the defendant is discovered
by immigration authorities in state custody. See United States
v. Los Santos, 283 F.3d 422, 428-29 (2d Cir. 2002); United States
v. Sanchez-Rodriquez, 161 F.3d 556, 564 (9th Cir. 1998) (en
banc). The First Circuit has also suggested that such a
departure may be appropriate. See United States v. Saldana, 109
F.3d 100, 104-05 (1st Cir. 1997). We have found no decisions
holding that a departure on such grounds is impermissible.
A district court cannot depart from the Guidelines, however,
unless it first finds, on the record, that the facts or
circumstances of a case remove that case from the heartland of
typical cases. United States v. Winters, 174 F.3d 478, 482 (5th
Cir. 1999). Where the factor at issue is not mentioned in the
Guidelines, the sentencing court must, after considering the
structure and theory of both relevant individual guidelines and
the Guidelines as a whole, decide whether it is sufficient to
take the case out of the Guidelines’ heartland, bearing in mind
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that departures based on grounds not mentioned in the Guidelines
will be highly infrequent. Koon, 518 U.S. at 96 (citing 1995
U.S.S.G. ch. 1, pt. A, p.6).
Here, it is unclear from the record whether the district
court would have been inclined to grant a further downward
departure based on Barrera-Saucedo’s time spent in state custody,
because the district court believed it did not have a legal basis
for departure. Thus, the district court did not conduct a
heartland analysis with respect to the time spent in state
custody.
The Supreme Court has held that, if “the district court
misapplied the Guidelines, a remand is appropriate unless the
reviewing court concludes, on the record as a whole, . . . that
the error did not affect the district court’s selection of the
sentenced imposed.” Williams v. United States, 503 U.S. 193, 203
(1993). The district court’s comments at sentencing did not
reveal whether it would have departed had it known that it could
do so to compensate Barrera-Saucedo for his lost opportunity to
serve his state and federal sentences concurrently. However, the
district court’s suggestion that the Bureau of Prisons consider
releasing Barrera-Saucedo early suggests that the district court
indeed might have considered departure had the court believed a
departure on such basis was an option.
We now hold that it is permissible for a sentencing court to
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grant a downward departure to an illegal alien for all or part of
time served in state custody from the time immigration
authorities locate the defendant until he is taken into federal
custody. The Ninth and Second Circuits disagree on the
circumstances under which such a downward departure might be
appropriate. The Second Circuit has held that for a district
court to depart based on prosecutorial delay that resulted in a
lost opportunity to serve state and federal sentences
concurrently, the delay in federal prosecution must have been in
bad faith or unreasonable. Los Santos, 283 F.3d at 428. The
Ninth Circuit, in contrast, has held that a defendant need not
demonstrate that the Government acted in bad faith and that
departure may be appropriate even in a case of innocent delay.
Sanchez-Rodriguez, 161 F.3d at 564. We concur with the analysis
of the Ninth Circuit, and conclude that a delay after the
defendant is found in state custody may be a factor in the
district court’s analysis of whether a downward departure is
warranted by the facts, and, if so, to what extent.
Applying these principles to the case at bar, because the
district court believed it was prohibited from considering
Barrera-Saucedo’s motion for downward departure based on time he
served in state custody after he was found, and because we have
now held that the court was not so prohibited, the district
court’s sentence is vacated, and this case is remanded for the
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limited purpose of allowing the district court to determine
whether the defendant is entitled to a downward departure for all
or part of the time he spent in state custody after he was
located by immigration authorities.
B. Constitutionality of 8 U.S.C. § 1326(b)
Barrera-Saucedo argues that the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.
The Supreme Court held in Almendarez-Torres that Congress
intended the fact of a prior “felony” or “aggravated felony” to
be a sentence enhancement provable to a judge at sentencing, by a
preponderance of the evidence, rather than an element to be
charged in the indictment and proved to a jury beyond a
reasonable doubt. See Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Barrera-Saucedo contends that in light of
Apprendi, it now appears that a majority of the Supreme Court
believes such a scheme is unconstitutional. See Apprendi v. New
Jersey, 530 U.S. 466 (2000); see also Blakely v. Washington, 2004
U.S. LEXIS 4573 (2004); see also United States v. Pineiro, 2004
U.S. App. LEXIS 14259 (5th Cir. 2004). However, as appellant
concedes, this contention is foreclosed by prior Fifth Circuit
precedent. See United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000).
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IV. CONCLUSION
For the foregoing reasons, the sentence of the district
court is VACATED, and the Court REMANDS this case for the limited
purpose of allowing the trial court to determine whether Barrera-
Saucedo is entitled to a downward departure for time spent in
state custody after the date when he was located by immigration
authorities.
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