                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                Plaintiff-Appellant,
                                            No. 03-50125
                v.
ALBERTO RUIZ-ALONSO, aka Alberto              D.C. No.
                                           CR-02-00591-TJH
Torrez-Ugaldo, aka Alberto
                                               OPINION
Torrez-Ugalde,
               Defendant-Appellee.
                                       
        Appeal from the United States District Court
            for the Central District of California
        Terry J. Hatter, Jr., District Judge, Presiding

                  Argued May 12, 2004;
               Resubmitted January 31, 2005
                   Pasadena, California

                  Filed February 11, 2005

    Before: James R. Browning, Pamela Ann Rymer, and
              Susan P. Graber, Circuit Judges.

                  Opinion by Judge Graber




                             1783
                 UNITED STATES v. RUIZ-ALONSO              1785


                         COUNSEL

Nancy B. Spiegel, Assistant United States Attorney, Criminal
Appeals Section, Los Angeles, California, for the plaintiff-
appellant.

Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellee.


                          OPINION

GRABER, Circuit Judge:

   In this illegal reentry case, the United States appeals the
district court’s decision at sentencing to depart downward by
four levels. Defendant Alberto Ruiz-Alonso seeks to dismiss
the appeal because of the government’s alleged failure to
demonstrate that it had “the personal approval of the Attorney
General, the Solicitor General, or a deputy solicitor general
designated by the Solicitor General” to proceed with this
appeal, as required by 18 U.S.C. § 3742(b).

   Joining our sister circuits, we hold that 18 U.S.C. § 3742(b)
does not impose a jurisdictional requirement. See United
States v. Zamudio, 314 F.3d 517, 519-20 (10th Cir. 2002) (cit-
ing cases). So even if the government failed to obtain permis-
sion to proceed with this appeal, we have jurisdiction. We
also hold that § 3742(b) survives United States v. Booker, 125
S. Ct. 738 (2005). Having concluded that we have jurisdiction
1786              UNITED STATES v. RUIZ-ALONSO
over the government’s appeal, we nevertheless vacate the dis-
trict court’s sentence and remand for resentencing in accor-
dance with Booker.

                      I.   JURISDICTION

   Title 18 U.S.C. § 3742(b) authorizes the government to file
a notice of appeal for review of a sentence imposed in a crimi-
nal case. This subsection remains in effect. The Supreme
Court in Booker severed and excised 18 U.S.C. § 3742(e)
(providing for, among other things, de novo review of down-
ward departures), but left in place the remainder of § 3742.
125 S. Ct. at 765. The Court explicitly stated that § 3742(a)
and (b) continue to give defendants and the government the
right to appeal:

      [T]he Act continues to provide for appeals from sen-
      tencing decisions (irrespective of whether the trial
      judge sentences within or outside the Guidelines
      range in the exercise of his discretionary power
      under § 3553(a)). See § 3742(a) (main ed.) (appeal
      by defendant); § 3742(b) (appeal by Government).

Id.

   [1] But to continue with an appeal filed under § 3742(b),
the government must obtain approval:

      The Government may not further prosecute such
      appeal without the personal approval of the Attorney
      General, the Solicitor General, or a deputy solicitor
      general designated by the Solicitor General.

The purpose of this requirement is to ensure that “ ‘appeals
are not routinely filed for every sentence below the guide-
lines.’ ” Zamudio, 314 F.3d at 520 (quoting S. Rep. No. 225,
98th Cong. 2d Sess., at 154, reprinted in 1984 U.S.C.C.A.N.
3182, 3337). “[C]entralized decisionmakers screen proposed
                    UNITED STATES v. RUIZ-ALONSO                       1787
Government appeals so that the appellate courts’ attention
will be focused on those sentences for which review is
deemed crucial to the proper functioning of the sentencing
guidelines.” United States v. Gonzalez, 970 F.2d 1095, 1102
(2d Cir. 1992) (citing 1984 U.S.C.C.A.N. at 3338).

   Defendant moved to dismiss the government’s appeal on
the ground that the government had failed to comply with the
“personal approval” requirement of § 3742(b). In response,
the government submitted a sworn declaration by the Assis-
tant United States Attorney then serving as Chief of the Los
Angeles Criminal Appeals Section. The declaration provides,
in relevant part:

         According to my review of our Office’s records,
      the government sought and, on May 13, 2003,
      obtained personal approval from the Solicitor Gen-
      eral to further prosecute this appeal.1

Defendant argues that this declaration does not constitute suf-
ficient proof of the government’s authorization to proceed
with the appeal and, further, that this alleged failure to comply
with the personal approval requirement defeats appellate
jurisdiction.

  [2] We reject both arguments. We agree with the reasoning
of the six circuits that have held that the personal approval
requirement is not jurisdictional in nature.2 See Zamudio, 314
  1
   The government filed its notice of appeal on March 26, 2003.
  2
   Our only published statement regarding the personal approval require-
ment came in United States v. Petti, 973 F.2d 1441, 1446 n.9 (9th Cir.
1992), in which we found that the government had submitted, with its
reply brief, adequate proof of the Solicitor General’s authorization. We
noted that, even if we were to require proof of compliance to be submitted
earlier than the reply brief, as does the Sixth Circuit, United States v.
Smith, 910 F.2d 326, 328 (6th Cir. 1990) (per curiam), a late submission
of proof would not defeat jurisdiction under the Sixth Circuit’s rule. Petti,
1788                 UNITED STATES v. RUIZ-ALONSO
F.3d at 519-20 (10th Cir. 2002); United States v. Abbell, 271
F.3d 1286, 1290 n.1 (11th Cir. 2001) (per curiam); United
States v. Hendrickson, 22 F.3d 170, 172 n.1 (7th Cir. 1994);
Gonzalez, 970 F.2d at 1101-02 (2d Cir. 1992); United States
v. Smith, 910 F.2d 326, 328 (6th Cir. 1990) (per curiam);
United States v. Gurgiolo, 894 F.2d 56, 57 n.1 (3d Cir. 1990).3

   [3] The statute requires only that the government obtain
approval; it does not demand that the approval be in writing
or that it be filed as part of the appellate record. United States
v. Hall, 943 F.2d 39, 41 (11th Cir. 1991) (per curiam); Smith,
910 F.2d at 328. That is, the statute does not expressly enlist
the courts as gatekeepers. Indeed, the statute permits the gov-
ernment to file a notice of appeal before obtaining approval
to “further prosecute” the appeal; and it is the filing of the
notice of appeal that establishes this court’s appellate jurisdic-
tion under 28 U.S.C. § 1291.4 Zamudio, 314 F.3d at 520; Gon-
zalez, 970 F.2d at 1102.
973 F.2d at 1446 n.9 (citing United States v. Rutana, 932 F.2d 1155, 1158
n.5 (6th Cir. 1991)). Thus, although Petti establishes that the government’s
submission of proof in this case was timely (it was filed well before the
reply brief), we have not discussed the jurisdictional consequences, if any,
of a failure to provide sufficient proof.
   3
     To our knowledge, the Fifth Circuit is the only court to have expressed
a different view. In United States v. Thibodeaux, 211 F.3d 910, 912 (5th
Cir. 2000) (per curiam), the court dismissed an appeal in which the gov-
ernment had “wholly” failed to respond to the defendant’s contention that
the government had not obtained approval under § 3742(b). The court’s
decision appeared to be based in large part on the principle that issues not
briefed on appeal are waived. See id.; but cf. United States v. Dadi, 235
F.3d 945, 955 (5th Cir. 2000) (declining to dismiss an appeal, under Thi-
bodeaux, where the government had “cure[d] this defect” by attaching the
requisite approval to its reply brief).
   4
     Before a 1990 amendment, § 3742(b) could have been read to require
the government to obtain approval before filing a notice of appeal. 18
U.S.C. § 3742(b) (1990) (“The Government, with the personal approval of
the Attorney General or the Solicitor General, may file a notice of appeal
. . . .”). Yet even under that prior version of the statute, the approval
requirement had been interpreted as a nonjurisdictional formality. Gur-
giolo, 894 F.2d at 57 n.1 (likening the failure to “indicate this approval”
in the text of the notice of appeal to an error in the caption of the pleadings
on appeal, which would not warrant dismissal); Smith, 910 F.2d at 328
(citing Gurgiolo with approval).
                 UNITED STATES v. RUIZ-ALONSO               1789
   In this way, the approval requirement is unlike the require-
ment that petitioners for habeas corpus relief obtain a Certifi-
cate of Appealability (“COA”) from a judge before appealing
the denial of a petition, a procedure to which Defendant draws
our attention. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit
justice or judge issues a certificate of appealability, an appeal
may not be taken to the court of appeals . . . .”). In the habeas
context, courts are charged explicitly with determining
whether a petitioner has made “a substantial showing of the
denial of a constitutional right"; if the petitioner has not, “an
appeal may not be taken” at all. Id. § 2253(c) (emphasis
added). By contrast, 18 U.S.C. § 3742(b) permits the govern-
ment to file a notice of appeal (the operative jurisdictional
document, like the COA in the habeas context) without
obtaining any approval, much less approval from the court.
Therefore, Defendant’s analogy to the COA requirement does
not avail him.

   Defendant next argues that we must interpret the personal
approval requirement as jurisdictional because it “embodies a
strong policy concerning the proper administration of judicial
business.” Glidden Co. v. Zdanok, 370 U.S. 530, 535-36
(1962) (plurality) (citing Am. Constr. Co. v. Jacksonville,
T.&K.W. Ry. Co., 148 U.S. 372, 387-88 (1893)); see also
Roell v. Withrow, 538 U.S. 580, 598-99 (2003) (Thomas, J.,
dissenting) (quoting Glidden). In the cases cited by Defen-
dant, the defects alleged were that a judge lacked authority to
sit on an appeal of an order that he entered when presiding
over the trial, Am. Constr. Co., 148 U.S. at 387-88; that deci-
sions were rendered by non-Article III judges, in violation of
the Constitution, Glidden, 370 U.S. at 531-32; and that a mag-
istrate judge lacked authority to enter an order without the
consent of the parties, Roell, 538 U.S. at 599. As the Court
said in Glidden, “[t]he alleged defect of authority here relates
to basic constitutional protections designed in part for the
benefit of litigants.” 370 U.S. at 536. By contrast, in the pres-
ent case Congress’ interest does not relate to basic constitu-
tional protections. Instead, Congress’ interest is in focusing
1790                UNITED STATES v. RUIZ-ALONSO
the government’s attention on the most important sentencing
issues, preventing the government from taking inconsistent
positions, and limiting the possible proliferation of appeals.
These interests, although important, are far less central to the
functioning of the judicial system than is the basic compe-
tency of judges to sit as neutral and legitimate adjudicators.

   Better guidance may be found in the Court’s recent deci-
sion in Scarborough v. Principi, 124 S. Ct. 1856, 1865
(2004), in which the Court cautioned against labeling as “ju-
risdictional” claims-processing requirements, such as time
prescriptions, that govern a proceeding that already has been
brought within a court’s jurisdiction by a valid notice of appeal.5
See also Gurgiolo, 894 F.2d at 57 n.1 (likening a failure of
personal approval to an error in the caption of the pleadings
on appeal). True jurisdictional rules relate to “ ‘the classes of
cases (subject-matter jurisdiction) and the persons (personal
jurisdiction) falling within a court’s adjudicatory authority.’ ”
Scarborough, 124 S. Ct. at 1865 (quoting Kontrick v. Ryan,
540 U.S. 443, 455 (2004)); cf. United States v. Hayes, 939
F.2d 509, 512 (7th Cir. 1991) (“Our jurisdiction to review
sentencing decisions is limited to those grounds specified in
18 U.S.C.A. § 3742(a), (b)[ ].” (emphasis added)).

   Of course, the fact that the personal approval requirement
is not jurisdictional does not necessarily make it judicially
unenforceable. In Smith, the Sixth Circuit exercised its super-
visory authority to impose, prospectively, a requirement that
written proof of personal approval be provided with the gov-
ernment’s appellate brief. 910 F.2d at 328. To date, no other
  5
   The personal approval requirement is, in other ways, unlike the claims-
processing rule at issue in Scarborough. Although both have the effect of
reducing irresponsible litigation by forcing a litigant to “think twice”
before appealing, see Scarborough, 124 S. Ct. at 1867, the statute in Scar-
borough explicitly requires particular content in a litigant’s application for
fees under the Equal Access to Justice Act. As we have noted, 18 U.S.C.
§ 3742(b) does not require the government’s “personal approval” to be
demonstrated in any document filed with the court.
                    UNITED STATES v. RUIZ-ALONSO             1791
circuit has imposed an affirmative requirement that the gov-
ernment demonstrate proof of approval. We decline to do so.
In essence, § 3742 sets forth the unremarkable requirement
that lawyers have the permission of their clients before prose-
cuting an appeal. We do not routinely require private lawyers
to offer proof of such permission before proceeding with an
appeal, and we will not routinely require such proof of the
government.

   [4] In sum, we hold that the government’s timely and prop-
erly filed notice of appeal gives us jurisdiction and that our
jurisdiction is not defeated by the government’s failure to
obtain approval pursuant to 18 U.S.C. § 3742(b). Further-
more, we shall impose no affirmative requirement that the
government demonstrate approval. Where the issue is not
raised, we will presume that the government has complied
with the statute. Here, in response to Defendant’s challenge,
we will accept the government’s sworn representation that it
has complied with the statute. See Abbell, 271 F.3d at 1290
n.1 (noting that the “government stated in its response to the
motion to dismiss that approval was obtained”). We need not
and do not decide whether or how we would exercise our
supervisory powers in a case in which there is evidence that
the government did not receive the requisite authorization.

  We turn now to the government’s appeal.

              II.    DOWNWARD DEPARTURE

   Defendant pleaded guilty to being found illegally in the
United States following two prior deportations and convic-
tions for aggravated felonies, in violation of 8 U.S.C. § 1326.
The district court sentenced Defendant under the then-
mandatory United States Sentencing Guidelines, calculating a
Guidelines offense level of 21 and departing downward by
four levels because of “the combination of factors . . . sug-
gested by the defense . . . and, particularly, because of cultural
1792            UNITED STATES v. RUIZ-ALONSO
assimilation.” As a result, Defendant was sentenced to 46
months.

   [5] The government appealed the downward departure.
After the government’s appeal was argued and submitted, the
Supreme Court issued its decision in United States v. Booker,
125 S. Ct. 738. Because we cannot say that the district judge
would have imposed the same sentence in the absence of
mandatory Guidelines and de novo review of downward
departures, we VACATE the sentence and REMAND for
resentencing in a manner consistent with Booker.

  SENTENCE VACATED; REMANDED.
