             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 00-50889
                                             Summary Calendar
                                             _______________



                                UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                                  VERSUS

                                ROBERTO AGUILAR-RAMIREZ,
                                  A/K/A FELIPE VELASQUEZ-RESENDEZ,


                                                                Defendant-Appellant.



                                      _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                    _________________________
                                            June 22, 2001



Before SMITH, BENAVIDES, and DENNIS,                    peals a judgment of sentence denying him a
  Circuit Judges.                                       downward departure under 18 U.S.C.
                                                        § 3553(b). Because the district court did not
JERRY E. SMITH, Circuit Judge:*                         realize that it could grant a downward
  Roberto Aguilar-Ramirez (“Aguilar”) ap-               departure, we vacate and remand for
                                                        resentencing in accordance with United States
                                                        v. Madison, 990 F.2d 178 (5th Cir. 1993).
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                                               I.
determined that this opinion should not be pub-
lished and is not precedent except under the limited       Aguilar was indicted and charged with be-
circumstances set forth in 5TH CIR. R. 47.5.4.          ing in the United States illegally after removal,
in violation of 8 U.S.C. § 1326.1 He had been                court whether it felt that Madison deprived it
deported to Mexico five times. He pleaded                    of authority to grant departure, the court re-
guilty, and the presentence report rec-                      sponded, “Yes, I do.” Then, the following
ommended that his offense level be increased                 exchange occurred:
by sixteen levels because he had been
convicted of an aggravated fel-                                 [Counsel for the Government]: Your
onySStheftSSbefore his deportation.                             Honor, . . . to make sure that the
                                                                appellate record is clear, it seemed that
   Aguilar objected, because no felony                          the court had decided it had the power
convictions had been alleged in the indictment.                 and authority to depart, however, felt
The objection was overruled. The PSR                            constrained under the factual
calculated that Aguilar’s five convictions2                     circumstances by the Fifth Circuit’s
placed him in criminal history category V. He                   prior precedent, and we just want to
moved for downward departure on the ground                      make sure that that’s clear.
that category V overrepresented the
seriousness of his criminal history.                            THE COURT: I feelSSwell, in order to
                                                                make the record clear, I feel that by rea-
   The district court denied the motion but                     son of the Fifth Circuit’s decision, I am
stated that it was disturbed by the criminal his-               bound by that precedent. And that pre-
tory category assigned to Aguilar.                              cedent dictates that I overrule the
Additionally, the court stated that it had                      motion for downward departure.
reviewed Madison and found the facts of the
present case directly comparable to those in                    [Counsel for the Government]: And
Madison.3 When Aguilar’s counsel asked the                      that’s a consideration of the factual de-
                                                                termination the court has made?

   1
     That offense carries a maximum term of two                 THE COURT: Yes.
years’ imprisonment. See 8 U.S.C. § 1326(a). If
the alien is removed after conviction for an ag-                                    II.
gravated felony, the maximum punishment is in-                  In enacting the Sentencing Reform Act of
creased to twenty years.         See 8 U.S.C.                1984, Congress granted the authority “to de-
§ 1326(b)(2).                                                part from the applicable guideline range if ‘the
                                                             court finds that there exists an aggravating or
   2
     Aguilar had been convicted of driving under             mitigating circumstance of a kind, or to a de-
the influence, driving with a suspended license,             gree, not adequately taken into consideration
burglary, petty theft, and illegal re-entry.                 by the Sentencing Commission in formulating
   3
     The district court stated that, in Madison, the
defendant had a serious criminal history and had
                                                                3
been arrested for multiple crimes such as tres-                   (...continued)
passing and credit card fraud. Consequently, be-             in the present case stated that it saw no reason why
cause of the strong criminal history, the court in           Aguilar’s criminal history was any less serious
Madison refused to grant a downward departure.               than that in Madison. Consequently, the court
See Madison, 990 F.2d at 184. The district court             claimed that it was denying the motion for a
                                        (continued...)       downward departure “based on that fact.”

                                                         2
the guidelines that should result in a sentence                A court’s erroneous belief that it lacks au-
different from that described.’” Koon v. Unit-              thority to grant a downward departure consti-
ed States, 518 U.S. 81, 92 (1996) (citing 18                tutes a violation of law, and we may review a
U.S.C. § 3553(b)). A court may depart                       sentence based on such error. See United
downward “provided that appropriate and                     States v. Yanez-Huerta, 207 F.3d 746, 748
adequate reasons for the departure are                      (5th Cir.), cert. denied, 121 S. Ct. 432 (2000).
assigned.” Madison, 990 F.2d at 182. A                      If, however, a court refuses to grant a
downward departure may be given if a                        downward departure based on the facts of a
defendant’s criminal history category                       particular case, we do not have jurisdiction.
significantly overrepresents the seriousness of             See United States v. Lugman, 130 F.3d 113,
his criminal history. See U.S.S.G. § 4a1.3                  114-15 (5th Cir. 1997).
(policy statement); Koon, 518 U.S. at 96. In
deciding whether to depart downward, the                        The district court apparently believed it did
district court has significant discretion. See,             not have authority to grant a motion for a
e.g., United States v. Threadgill, 172 F.3d                 downward departure, because it thought
357, 376 (5th Cir.), cert. denied, 120 S. Ct.               Madison removed that authority. This directly
172 (1999).                                                 contradicts Madison’s holding that a district
                                                            court may depart downward “provided that
   Generally, we “will not disturb the                      appropriate and adequate reasons for the
sentencing court’s discretionary decision not               departure are assigned.” Madison, 990 F.2d at
to depart downward from the guidelines.”                    182 (noting that “[e]nunciation of an adequate
United States v. Crow, 164 F.3d 229, 239 (5th               explanation for departure from the sentencing
Cir.) (citing United States v. Soliman, 954                 guidelines range is a threshold requirement
F.2d 1012, 1014 (5th Cir. 1992)), cert. denied,             mandated by statute”); 18 U.S.C. §§ 3553(c),
119 S. Ct. 2051 (1999) ).4 We will review a                 3742(e). The court also stated, however, that
refusal to depart downward only where the                   it merely was making a factual determination
district court mistakenly believed that the de-             that Aguilar did not deserve a downward de-
parture was not permitted by the guidelines,                parture from sentencing guidelines. Thus, a
where the district court misinterprets the                  literal reading of the record leads one to
guidelines, or where the sentence is outside the            conclude that the court believed that it lacked
range of applicable guidelines. United States               the authority, under Fifth Circuit precedent, to
v. McClatchey, 249 F.3d 348, ___ (5th Cir.                  grant a downward departure, but still
2001); see 18 U.S.C. §§ 3742(a).                            considered granting a downward departure
                                                            and found one not merited.

   4
                                                               The government claims that the court’s
      Because the district court has substantial dis-
                                                            statement that Madison removed its authority
cretion in these matters, the standard of review for
a denial of a motion for downward departure is
                                                            to grant a downward departure should be
abuse of discretion. See Crow, 164 F.3d at 239;             viewed “in context of the entire record.” The
Lugman, 130 F.3d at 115 (citing Koon, 518 U.S.              government argues that the court really meant
at 116, and noting that “a district court by de-            that it could not grant a motion for a
finition abuses its discretion when it makes an error       downward departure based on the facts of the
of law, and therefore a unitary abuse of discretion         present case. In support of this contention, the
standard of review is sufficient”).

                                                        3
government cites, among other cases, United                  court can exercise its authority under Madison
States v. DeCosta, 37 F.3d 5 (1st Cir. 1994);                to grant a downward departure, or it can de-
United States v. Gulley, 992 F.2d 108 (7th                   cide not to grant a downward departure based
Cir. 1993); United States v. Payne, 81 F.3d                  on its evaluation of the seriousness of Agui-
759 (8th Cir. 1996); and In re Sealed Case,                  lar’s criminal history. We express no view of
199 F.3d 488 (D.C. Cir. 1999). All of these,                 which decision the court should make.
though, are distinguishable.5 None of them
involved the sort of colloquy that occurred                                        III.
here.                                                           Aguilar contends that his sentence of
                                                             seventy months violates due process. He
   Where, as here, the record is confusing, a                claims that § 1326(b)(2) defines a separate
remand is required.6 On remand, the district                 offense, of which a prior aggravated-felony
                                                             conviction is an element. He argues that
                                                             construing § 1326(b)(2) as a sentence-
   5
      The government’s use of DeCosta is un-                 enhancement provision would render the
availing. There, defense counsel never explicitly            statute unconstitutional. As Aguilar admits,
mentioned downward departure nor urged addi-                 however, the Supreme Court has rejected
tional factors as a basis for downward departure.            these arguments. See United States v.
See DeCosta, 37 F.3d at 7-9. Here, by contrast,              Almendarez-Torres, 523 U.S. 224 (1998). So
counsel for Aguilar directly asked the court wheth-          too has this circuit. See United States v.
er it had authority to grant a downward departure            Dabeit, 231 F.3d 979, 984 (5th Cir. 2000)
pursuant to Madison.                                         (noting that Almendarez-Torres governs §
                                                             1326(b) actions), cert. denied, 121 S. Ct. 1214
    Also distinguishable is Gulley, which did not
                                                             (2001).     Because these arguments are
involve two completely contradictory conversations
                                                             foreclosed by binding precedent, we reject
between the district court and both sides. Rather,
the court in Gulley stated merely that it could not          them.7
grant a downward departure because of the facts of
the particular case. See Gulley, 992 F.2d at 111-
                                                                6
12.                                                              (...continued)
                                                             54-55 (D.C. Cir. 1992) (noting that the district
   In Payne, the court merely stated that it was             court was unaware that authority existed to grant
unsure that it had the authority to grant a down-            a downward departure); United States v. Webb,
ward departure. See Payne, 81 F.3d at 765. Here,             139 F.3d 1390, 1395 (11th Cir. 1998) (stating that,
the court was sure that it did not have such au-             because the record was ambiguous, a remand was
thority, then stated that, because of Aguilar’s              required); United States v. Brown, 903 F.2d 540,
criminal history, it would not grant a downward              544-45 (8th Cir. 1990).
departure. Finally, the court stated that Madison
                                                                7
dictated that it overrule Aguilar’s motion, but it did            Aguilar asserts that “the continuing validity of
not say why. Lastly, In re Sealed Case is not on             Almanedarez-Torres, however, has been cast into
point, because counsel for the defendant never               serious doubt” by Apprendi v. New Jersey, 530
requested a downward departure. See In re Sealed             U.S. 466 (2000). Because the Court did not
Case, 199 F.3d at 490-91.                                    overrule Almendarez-Torres in Apprendi, Almen-
                                                             darez-Torres still controls. See, e.g., Agostini v.
   6
       See United States v. Beckham, 968 F.2d 47,            Felton, 521 U.S. 203, 237 (1997); Rodriguez de
                                     (continued...)                                                (continued...)

                                                         4
                      IV.
   As another circuit has stressed, “sentencing
judges should avoid using the ambiguous lan-
guage that gives rise to appeals . . . . Justice is
better served through clarity on the record.”
In re Sealed Case, 199 F.3d at 491. We
VACATE the judgment of sentence and
REMAND for resentencing in accordance with
Madison.




   7
    (...continued)
Quijas v. Shearson/Am. Express, Inc., 490 U.S.
477, 484 (1989). Aguilar’s second argument fails
by default because, as he admits, Almendarez-
Torres still governs. See United States v. Doggett,
230 F.3d 160, 166 (5th Cir. 2000) (stating that
Apprendri did not overrule Almendarez-Torres),
cert. denied, 121 S. Ct. 1152 (2001).

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