[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ DECEMBER 05, 2003
THOMAS K. KAHN
No. 03-13142 CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 02-00741-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SATURNINO LOPEZ ORTEGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 5, 2003)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Saturnino Lopez Ortega appeals his sentence for illegal re-entry after
deportation, in violation of 8 U.S.C. § 1326. On appeal, Ortega argues that the
district court erroneously believed it lacked the authority to depart downward, and
further, that a downward departure was warranted in this case because United
States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) § 2L1.2(b)(1)(A)
(2002), which provides for a sixteen-level increase in base offense level for re-
entering after a prior felony conviction, does not adequately take into account the
differences in severity between underlying prior felony convictions.1 Upon
review, we disagree with Ortega’s argument and dismiss Ortega’s appeal.
Ordinarily, a district court’s refusal to grant a downward departure is
unreviewable on appeal. See United States v. Rudisill, 187 F.3d 1260, 1265 (11th
Cir. 1999). Such refusals are reviewable, however, if the district court refused a
downward departure because of an erroneous belief that it lacked the authority to
grant one. Id. Ortega argues that the statements made by the district court at his
sentencing hearing evidenced its belief that it lacked authority to grant a
downward departure.2 For purposes of this appeal, we agree that the district court
was ambiguous regarding its authority to grant a downward departure and resolve
1
Ortega was indicted for illegal re-entry after deportation. He was previously deported
after being convicted of selling or furnishing methamphetamine, a felony for which the sentence
imposed exceeded 13 months.
2
In declining to grant a downward departure, the district court stated: “I think one of the
things you’re saying to me is the guidelines just aren’t right. And I, of course, have taken an oath
to follow the guidelines . . . . I’m going to deny your motion for downward departure,
recognizing that it would be in my discretion to do so.”
2
that ambiguity in favor of Ortega.3 We next consider whether the district court’s
belief that it did not have the authority to depart downward was erroneous.
Under the Guidelines, a district court has the authority to depart downward
only if it finds an aggravating or mitigating circumstance “not adequately taken
into consideration by the Sentencing Commission in formulating the guidelines . .
. .” U.S.S.G. § 5K2.0 (2002).
Ortega argues that the Guidelines do not adequately take into account the
differences in the severity among aggravated felonies, noting that a prior felony
conviction for murder would be treated the same under U.S.S.G. § 2L1.2 as a prior
felony conviction for a drug trafficking offense. We disagree, finding that the
Guidelines do take into account differences between aggravated felonies.
Prior to 2001, U.S.S.G. § 2L1.2 increased the base offense level by sixteen
levels for a prior conviction of an aggravated felony. See U.S.S.G. § 2L1.2
(2000). The commentary to this section noted that “[a]ggravated felonies that
trigger the [aggravated felony adjustment] vary widely . . . .[such that] a downward
3
While the government argues that the district court was not ambivalent about its
authority to depart, we find that the two statements by the district court–on one hand, that it was
obligated to follow the guidelines, and on the other hand that it had discretion to depart
downward–were ambiguous as to its authority. Where, as here, the district court’s statements
reflect an ambiguity concerning its ability to depart, we resolve the ambiguity in favor of the
defendant. See United States v. Webb, 139 F.3d 1390, 1395 (11th Cir. 1998).
3
departure may be warranted based on the seriousness of the aggravated felony.”
U.S.S.G. § 2L1.2, cmt. n.5 (2002).
In 2001, § 2L1.2 was amended to provide for various base-level
enhancements according to the type of prior felony conviction involved. See
U.S.S.G. § 2L1.2 (2001) (applying base-level enhancements ranging from eight
levels for a general aggravated felony to sixteen levels for any of seven
enumerated felonies, including “a drug trafficking offense for which the sentence
imposed exceeded 13 months”). According to the Sentencing Commission, this
amendment intended to alleviate the disproportionate penalties that resulted from
the breadth of “aggravated felonies” by classifying aggravated felonies along a
graduated sentencing enhancement scheme. See U.S.S.G. app. C., amend. 632
(2001).
While the Sentencing Commission determined that it was not fair for
someone convicted of simple assault to receive the same increase as someone
convicted of murder, it also determined that a drug trafficking crime for which the
sentence exceeded thirteen months was serious enough to warrant a sixteen level
enhancement. See U.S.S.G. § 2L1.2 (2001). Because the mitigating circumstance
that Ortega seeks to apply was adequately taken into account by the Sentencing
Commission in formulating the 2001 amendment to § 2L1.2, the district court did
4
not have the authority to depart downward based on this factor. See U.S.S.G. §
5K2.0.4
Because the district court did not erroneously believe that it lacked authority
to depart downward, its refusal to depart is unreviewable on appeal. See Rudisill,
187 F.3d at 1265. Accordingly, we DISMISS this appeal.
4
It is worth noting that the Sentencing Commission specifically deleted the application
note included in the 2000 Sentencing Guidelines that previously allowed for downward
departures based upon seriousness of the aggravated felony. Compare U.S.S.G. § 2L1.2
background (2000) with U.S.S.G. § 2L1.2 background. (2001).
5