                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-2208
                                     ___________

United States of America,                 *
                                          *
               Appellant,                 *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Leonel Rodriguez-Ceballos,                *
                                          *
               Appellee.                  *
                                     ___________

                                Submitted: February 10, 2004

                                    Filed: April 29, 2004 (Corrected 5/5/04)
                                     ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN and SMITH, Circuit Judges.
                         ___________

SMITH, Circuit Judge.

       In this direct criminal appeal, the government challenges the sentence imposed
by the district court after Leonel Rodriguez-Ceballos pleaded guilty to illegal reentry
following deportation.1 At sentencing, the district court departed downward from a
total offense level of 21–which included a 16-level increase based on a prior
conviction for an aggravated felony–to a total offense level of 16. The court based its
departure decision on the "disproportionate impact" of applying the "entire 16-level
increase" to Rodriguez-Ceballos's total offense level. The court then sentenced

      1
          8 U.S.C. § 1326(a).
Rodriguez-Ceballos to 24 months' imprisonment, which was the lowest sentence
within the resulting 24-30 month sentencing range. On appeal, the government argues
that the district court erred in its decision to depart downward. We agree and remand
for resentencing.

                                          I.
       The sentencing court expressed particular concern with the "disproportionate
impact" Rodriguez-Ceballos's prior aggravated-felony conviction (for Domestic
Abuse–Assault with a Dangerous Weapon2) had on his sentencing range. This
conviction stemmed from a domestic dispute between Rodriguez-Ceballos and his
girlfriend, "S.B." According to the Presentence Investigation Report (PSR),
"[Rodriguez-Ceballos] threatened her with a knife, squeezed and twisted her breasts,
and stated he would kill her and cut her into little pieces if she called the police."
Rodriguez-Ceballos submitted an objection letter characterizing that assault as a
"one-time occurrence," and further stated that S.B. "is not afraid of [Rodriguez-
Ceballos], and . . . intends to move to Mexico to reside with [Rodriguez-Ceballos]
when he is eventually deported to his native country." Rodriguez-Ceballos's written
objections did not dispute that he used a knife during the assault.

       The Probation Office declined to change the PSR pointing out that the
information at issue came from "police reports." The Probation Office also pointed
out that "[d]omestic violence literature indicates that often times, victims of assault
recant the statements made to police and others." However, the Probation Office did
note the objection in the final version of the PSR.

       At the sentencing hearing, Rodriguez-Ceballos presented testimony from S.B.,
who presented herself as Rodriguez-Ceballos's fiancée. S.B. claimed that she "got
hit," but that Rodriguez-Ceballos did not threaten her with a knife. She acknowledged


      2
          In violation of Iowa Code § 708.2A(2)(c).

                                         -2-
telling the police that he threatened to cut her up into little pieces, but she claimed her
poor grasp of the Spanish language caused her to misunderstand Rodriguez-Ceballos
statement. The government offered two documents into evidence 1) a no-contact
order entered on August 1, 2002 for S.B.'s protection, and 2) the state court judgment
that documented Rodriguez-Ceballos's conviction based upon a plea agreement and
recited that the crime involved the use of a knife.

       Following the evidentiary hearing and the arguments of counsel, the district
court stated that the "record . . . suggests that this was an altercation between two
persons involved in a personal relationship," and concluded that "there is serious
question as to whether or not a knife was actually utilized, despite the reference to the
use of a knife in the plea." The district court somewhat discounted S.B.'s credibility
expressing "some concern that care for the [d]efendant today may have caused the
witness to be more generous about the prior events than were accurate." The court
proceeded to sentence Rodriguez-Ceballos to 24 months' imprisonment, after granting
a five-level departure. The government appeals alleging that the sentence imposed is
contrary to the Guideline's methodology for consideration of the seriousness of a
defendant's prior offense.

                                         II.
       In Iowa, Rodriguez-Ceballos pleaded guilty to the crime of Domestic
Abuse–Assault with a Dangerous Weapon, in violation of Iowa Code § 807.2A(2)(c).
When he entered his plea, Rodriguez-Ceballos was represented by counsel and had
the assistance of an interpreter. Rodriguez-Ceballos was sentenced to two years in
prison, with all but fifteen days suspended.3 The state court judgment included
Rodriguez-Ceballos's signature and also included the statement "I did the following


      3
        On August 21, 2002, Rodriguez-Ceballos was deported to Mexico. The no-
contact order was canceled on August 22, 2002. On November 20, 2002, a one-count
indictment was filed charging Rodriguez-Ceballos with illegal reentry.

                                           -3-
to commit this crime," followed by this handwritten declaration: "On 7-18-02 in Polk
Co. I assaulted [S.B.] with a knife placing her in fear of an assault."

       We have previously considered the principal issue in this case–whether the
circumstance of a prior offense is a proper basis to support a sentencing departure
under U.S.S.G. § 2L1.2. In United States v. Dyck, 334 F.3d 736, 740–41 (8th Cir.
2003), we concluded that they were not. Rodriguez-Ceballos acknowledges the
holding of Dyck and attempts to avoid the precedent by characterizing the district
court's departure as a finding that the prior crime of violence did not occur at all. He
contends that absent a knife (or other dangerous weapon), he would have been guilty
of only a misdemeanor offense, resulting in no enhancement under § 2L1.2.

        Rodriguez-Ceballos's argument is essentially a collateral attack on the validity
of his state court conviction. However, absent express statutory authorization, a prior
conviction used to enhance a sentence cannot be collaterally attacked unless a
complete deprivation of counsel exists. Custis v. United States, 511 U.S. 485, 490–97
(1994). "Federal courts are not forums in which to relitigate state trials." Id. at 490
(citations and internal quotations omitted). Rodriguez-Ceballos was represented by
counsel in the Iowa case, and no express provision allows him to collaterally attack
the validity of this conviction for purposes of sentencing. Cf. 21 U.S.C. § 851(c), (e)
(providing limited ability to collaterally attack statutory-sentencing enhancement in
drug cases).

       After careful de novo review of the record, we conclude that the district court
erred in granting Rodriguez-Ceballos a downward departure. See PROTECT Act, 151
Pub.L. No. 108-21, § 401(d), 117 Stat. 650, 670 (2003) (standard of review); United
States v. Gonzales-Ortega, 346 F.3d 800 (8th Cir. 2003) (PROTECT Act standard of
review applies to pending appeals even though sentencing occurred before Act
became law). Accordingly, we reverse and remand for resentencing consistent with
this opinion.
                        ______________________________

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