                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                         JUN 23 1999
                                    TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

           Plaintiff - Appellee,
 vs.                                                    No. 98-4172
                                                  (D.C. No. 98-CR-309-K)
 SERGIO ROBLES-MEDINA, aka                               (D. Utah)
 Oscar Medina-Morales,

           Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Defendant-Appellant Sergio Robles-Medina pled guilty to unlawful re-entry

of a deported alien, see 8 U.S.C. § 1326, and was sentenced to seventy months’

imprisonment and three years’ supervised release. Mr. Robles-Medina received a

longer sentence because he had previously been convicted of an “aggravated

felony” as that term is defined under federal law. See 8 U.S.C. §§ 1101(a)(43)(B)

       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
(definition), 1326(b)(2) (penalty). Specifically, he had been convicted of a fourth

degree felony for possession of a controlled substance, see N.M. Stat. Ann. §§ 30-

31-23(A) & (B)(3) (Michie 1997 Repl. Pamp.), and was originally sentenced in

state court to eighteen months of incarceration, deferred to eighteen months’

probation, see I R. doc. 2 at 2. The federal district court overruled his objection

to an enhanced offense level and denied his motion for a downward departure.

On appeal, he contends that his base offense level was incorrectly increased by

sixteen levels for an “aggravated felony,” see USSG § 2L1.2(b)(1)(A) (1997),

rather than by four levels for a “misdemeanor controlled substance offense,” see

USSG § 2L1.2(b)(1)(B)(ii).

      Our review of the legal issues in this appeal is de novo. See United States

v. Bencomo-Castillo, No. 98-2126, 1999 WL 300527, *2 (10th Cir. May 13, 1999)

(district court’s application of Sentencing Guidelines is reviewed de novo when a

legal question is presented). Despite the apparent clarity of the statute, see 8

U.S.C. §§ 1101(a)(43)(B), the applicable guidelines provision, see USSG

§ 2L1.2(b)(1)(A) and the applicable commentary, see USSG § 2L1.2, comment.

(n.1) (defining “aggravated felony”), Mr. Robles-Medina suggests that a

“misdemeanor controlled substance offense” means “the lowest class of offenses

punishable by a term that exceeds one year.” Aplt. Br. at 5. Accordingly, he says

he comes within the lower enhancement (four levels). He bases his argument on a


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cross-reference to USSG § 4B1.2 contained in the commentary to § 2L1.2

(comment. (n.1)) stating that a “controlled substance offense” is “an offense

under federal or state law, punishable by imprisonment for a term exceeding one

year.” USSG § 4B1.2(b).

      There are at least three problems with this construction. First, the term

“misdemeanor controlled substance offense” is contained in § 2L1.2(b)(1)(B),

which contemplates a four-level increase for “three or more . . . controlled

substance offenses.” Section 2L1.2(b)(1)(B) by its terms does not apply to a

conviction for an “aggravated felony.” Second, even if § 2L1.2(b)(1)(B) applied

along with § 2L1.2(b)(1)(A), the guideline instructs that the provision resulting in

the greatest increase–here, § 2L1.2(b)(1)(A)–should apply. Third, Tenth Circuit

precedent fully supports the district court’s resolution of which enhancement

applies.

      In United States v. Cabrera-Sosa, 81 F.3d 998, 1000 (10th Cir. 1996), we

determined that an “aggravated felony” under 8 U.S.C. § 1101(a)(43), included a

drug offense that is (1) punishable under the Controlled Substances Act, and (2) a

felony. See also United States v. Lugo, 170 F.3d 996, 1006 (10th Cir. 1999);

United States v. Forbes, 16 F.3d 1294, 1301 (1st Cir. 1994). Mr. Robles-

Medina’s state conviction for possession of more than eight ounces of marijuana

is punishable under the Controlled Substances Act. See 18 U.S.C. § 924(c)(2); 21


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U.S.C. § 844(a) (simple possession). The offense need only be a felony under

federal or state law, see 21 U.S.C. § 802(13); United States v. Pornes-Garcia, 171

F.3d 142, 145 (2d Cir. 1999); United States v. Valenzuela-Escalante, 130 F.3d

944, 946 (10th Cir. 1997), and the state conviction is a fourth-degree felony with

a basic sentence of eighteen months’ imprisonment. See N.M. Stat. Ann. §§ 30-

31-23(A) & (B)(3) (Michie 1997 Repl. Pamp.); 31-18-15(6) (Michie 1994 Repl.

Pamp.); 30-1-6(A) (Michie 1994 Repl. Pamp.) (“A crime is a felony if it is so

designated by law or if upon conviction thereof a sentence of death or of

imprisonment for a term of one year or more is authorized.”).

       Mr. Robles-Medina also argued for a downward departure in the district

court on similar grounds. See 18 U.S.C. § 3553(b); USSG § 5K2.0, p.s. He did

not argue that departure was warranted under USSG § 2L1.2, comment. (n.5),

which encourages downward departure based upon the seriousness of the

aggravated felony in certain circumstances. Normally, we lack jurisdiction to

review a discretionary decision not to depart, but in this case the district court

determined that it lacked the power to depart based upon its interpretation of the

provisions relied upon by Mr. Robles-Medina. See III R. 23-24; 1 United States v.


      1
              In rejecting the argument that the four-point enhancement existed for
situations like the defendant’s, the district court stated:

      Well, I wish it did. I don’t agree with you. I wish it did. I didn’t
      write the guidelines. And it looks to me like if you have something

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Castillo, 140 F.3d 874, 888 (10th Cir. 1998) (discussing when a refusal to depart

is reviewable); United States v. Labielle-Soto, 163 F.3d 93, 100 (2d Cir. 1998)

(same). Therefore, we have jurisdiction to consider this issue.

      We have held that the proper focus of the “aggravated felony” classification

is whether an offense meets the statutory definition of the underlying offense, not

the specific facts of the offense. See United States v. Reyes-Castro, 13 F.3d 377,

379 (10th Cir. 1993). That is a different inquiry, however, than whether a

downward departure is appropriate based upon a comparison of a defendant’s

offense with those of other defendants also in the category. Citing United States

v. Rios-Favela, 118 F.3d 653 (9th Cir. 1997), the government argues that any drug

trafficking crime falls within the heartland, regardless of generic characteristics,

such as quantity. In Rios-Favela, a panel of the Ninth Circuit rejected a

downward departure from an enhanced base offense level, regardless of the nature

of the “aggravated felony.” See id. at 656-59; see also United States v. Amaya-

Benitez, 69 F.3d 1243, 1247-1249 (2d Cir. 1995). Given the Supreme Court’s




      called a felony where you have imprisonment for a term exceeding
      one year that your argument fails. I say I wish it didn’t fail. I think I
      am going to have to impose a sentence, a longer sentence than makes
      any sense here. But you can appeal it and maybe get it reduced.

III R. 24. Thus, it appears that the district court determined that it was unable to
depart for any “aggravated felony.”


                                         -5-
subsequent illumination of the proper framework for downward departures in

Koon v. United States, 518 U.S. 81, 92-100 (1996), however, the Ninth Circuit

overruled Rios-Favela. See United States v. Sanchez-Rodriguez, 161 F.3d 556,

560-63 (9th Cir. 1998) (en banc). Relying upon the November 1, 1997 version of

USSG § 2L1.2 and Koon, the Eighth Circuit has recognized that the seriousness

of the “aggravated felony” may be a valid basis for downward departure. See

United States v. Diaz-Diaz, 135 F.3d 572, 581 (8th Cir. 1998). Therefor, we will

remand for the district court to consider, consistent with Koon, whether a

downward departure is appropriate in this case. See United States v. Collins, 122

F.3d 1297, 1301-03 (10th Cir. 1997) (discussing Koon).

      AFFIRMED IN PART; REMANDED IN PART.

                                              Entered for the Court


                                              Paul J. Kelly, Jr.
                                              Circuit Judge




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