                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 05a0416p.06

                     UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                    X
                               Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                     -
                                                     -
                                                     -
                                                         No. 04-2502
         v.
                                                     ,
                                                      >
 VICTOR MANUEL IBARRA-HERNANDEZ,                     -
                           Defendant-Appellant. -
                                                    N
                      Appeal from the United States District Court
                 for the Western District of Michigan at Grand Rapids.
                    No. 04-00133—Gordon J. Quist, District Judge.
                                   Argued: September 16, 2005
                              Decided and Filed: October 14, 2005
                 Before: GUY, BATCHELDER, and GILMAN, Circuit Judges.
                                       _________________
                                            COUNSEL
ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT
OF MICHIGAN, Grand Rapids, Michigan, for Appellant. Timothy P. VerHey, UNITED STATES
ATTORNEY, Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL
PUBLIC DEFENDERS OFFICE, WESTERN DISTRICT OF MICHIGAN, Grand Rapids,
Michigan, for Appellant. Donald Daniels, UNITED STATES ATTORNEY, Grand Rapids,
Michigan, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
        RONALD LEE GILMAN, Circuit Judge. Victor Manuel Ibarra-Hernandez, a Mexican
national, was charged with and pled guilty to illegally reentering the United States after having been
convicted of a felony, in violation of 8 U.S.C. § 1326(a) and (b). Over his objection,
Ibarra-Hernandez was sentenced by the district court to 70 months of imprisonment, which was at
the bottom of the 70 to 77 month range determined by his offense level and criminal history under
the United States Sentencing Guidelines (USSG). For the reasons set forth below, we VACATE
Ibarra-Hernandez’s sentence and REMAND the case for resentencing in accordance with the
Supreme Court’s decision in United States v. Booker, 125 S. Ct. 738 (2005). We further hold,
however, that the district court did not err in denying Ibarra-Hernandez’s motion for a downward
departure under USSG § 2L1.2(b)(1)(A)(ii), which directs the district court to increase the offense



                                                  1
No. 04-2502           United States v. Ibarra-Hernandez                                       Page 2


level of a previously deported alien who has illegally reentered the United States after having been
convicted of a “crime of violence.”
                                       I. BACKGROUND
        Ibarra-Hernandez entered the United States illegally some time in the mid-1980s, when he
was a teenager. In 1994, when Ibarra-Hernandez was 24 years old, he was charged with and pled
guilty to attempting to break into a neighbor’s house. Ibarra-Hernandez now contends that he was
inebriated at the time and simply crashed his hand through a window. He also claims that he left
immediately when approached by the homeowner. Ibarra-Hernandez was subsequently sentenced
to five years of imprisonment. This sentence was later suspended, however, and Ibarra-Hernandez
was instead placed on probation for five years.
        In April of 2001, Ibarra-Hernandez was deported from the United States, but reentered
illegally one week later. On June 17, 2004, he was stopped by the Michigan State Police near Paw
Paw, Michigan on a routine traffic stop. The police officer identified Ibarra-Hernandez as a
previously deported alien. He was then charged with, and pled guilty to, being in the United States
without the permission of the Attorney General after having been convicted of a felony, in violation
of 8 U.S.C. § 1326(a) and (b).
        Ibarra-Hernandez’s Presentence Report (PSR) determined that he had a base offense level
of 8. Pursuant to USSG § 2L1.2(b)(1)(A)(ii), the PSR recommended that this base offense level be
increased by 16 levels because Ibarra-Hernandez had previously been convicted of attempted
burglary, which is considered a “crime of violence” under the Sentencing Guidelines. The PSR
further recommended that the enhanced offense level then be decreased by 3 levels based upon his
acceptance of responsibility for reentering the United States illegally. Id. With a criminal history
category of V and a net offense level of 21, Ibarra-Hernandez’s Sentencing Guidelines range was
determined to be 70 to 77 months of imprisonment.
        Ibarra-Hernandez objected to the PSR’s recommendation on two grounds. First, he argued
that the 16-level enhancement significantly overstated the severity of his attempted-burglary
conviction. The district court, however, denied Ibarra-Hernandez’s motion, ruling that, under USSG
§ 2L1.2(b)(1)(A)(ii), it did not have the discretion to depart downward. Ibarra-Hernandez’s other
objection was that the district court’s adherence to the Sentencing Guidelines was misplaced under
Blakeley v. Washington, 542 U.S. 296 (2004). The district court once again overruled his objection,
this time relying on United States v. Koch, 383 F.3d 436, 443 (6th Cir. 2004) (en banc), overruled
by United States v. Booker, 125 S. Ct. 738 (2005). At his sentencing hearing, Ibarra-Hernandez was
sentenced to 70 months of imprisonment. This timely appeal followed.
                                         II. ANALYSIS
A.     Ibarra-Hernandez’s sentence should be remanded to the district court for
       reevaluation in light of Booker and Barnett
        Ibarra-Hernandez’s principal contention on appeal is that the district court erred when it
sentenced him pursuant to the then-mandatory Sentencing Guidelines. In support of this argument,
Ibarra-Hernandez notes that he objected at the sentencing hearing to the district court’s reliance on
the Guidelines, thus preserving the argument for appeal. He also maintains that the district court
might have decreased his sentence under the now-advisory scheme, particularly in light of the fact
that he was sentenced at the low end of the recommended Guidelines range.
       After Ibarra-Hernandez’s sentence was imposed, the Supreme Court decided United States
v. Booker, 125 S. Ct. 738, 756-57 (2005), which declared unconstitutional the statutory provision
that made the Guidelines mandatory. Although the sentencing court is still “require[d] . . . to
No. 04-2502           United States v. Ibarra-Hernandez                                         Page 3


consider Guidelines ranges,” id. at 757, Booker had the effect of making the Guidelines advisory
instead of mandatory. The government acknowledges that the district court erred in sentencing
Ibarra-Hernandez under what everyone properly assumed at the time were mandatory Sentencing
Guidelines, and it concedes that Ibarra-Hernandez’s sentence must be remanded to the district court
pursuant to Booker, id., and United States v. Barnett, 398 F.3d 516, 529 (6th Cir. 2005). We
therefore vacate Ibarra-Hernandez’s sentence and remand the case to the district court for
resentencing consistent with Booker.
B.     The district court did not have the discretion to depart downward under USSG
       § 2L1.2(b)(1)(A)(ii)
        Ibarra-Hernandez’s second argument is that the district court erred when it determined that
it lacked any discretion to depart downward under USSG § 2L1.2(b)(1)(A)(ii). Even though the
Sentencing Guidelines are now advisory only, the appropriate Guidelines range for Ibarra-
Hernandez is nonetheless important. This is because “Booker requires an acknowledgment [by the
district court] of the defendant’s applicable Guidelines range as well as a discussion of the
reasonableness of a variation from that range.” United States v. Jackson, 408 F.3d 301, 305 (6th Cir.
2005).
        In general, “[a] district court’s construction of the sentencing guidelines is a question of law
which this Court reviews de novo.” United States v. Boucha, 236 F.3d 768, 771 (6th Cir. 2001).
This court has concluded, however, that “[a] district court’s discretionary decision not to depart
downward from the guidelines is unreviewable, so long as the district court understands that it has
discretion so to depart.” United States v. Taylor, 286 F.3d 303, 305 (6th Cir. 2002) (citations
omitted). But “when the district court interprets the guidelines to prohibit a departure, that
determination is reviewable.” Id. (citations omitted). The district court in the present case explicitly
rejected the argument that it had the discretion to grant Ibarra-Hernandez’s motion for a downward
departure. This issue is therefore reviewable by us under a de novo standard of review. United
States v. Hawkins, 274 F.3d 420, 426 (6th Cir. 2001).
       The Guidelines section in question, § 2L1.2(b)(1)(A)(ii), directs the district court to increase
the defendant’s base offense level by 16 levels “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after a conviction for a felony that is a crime of violence.”
Corresponding official comments further explain that a “crime of violence” includes the attempted
“burglary of a dwelling.” USSG § 2L1.2 cmt. nn.1 (B)(iii) & 5 (2004). Ibarra-Hernandez contends,
however, that the district court had the requisite discretion to depart downward from this 16-level
adjustment because the Sentencing Commission’s 2001 amendments changed the nature of
§ 2L1.2(b)(1)(A)(ii).
        Specifically, Ibarra-Hernandez points to Application Note 5 of the former version of USSG
§ 2L1.2, which allowed a sentencing court the discretion to depart only in situations where the
factors explicitly enumerated in Application Note 5 existed. See USSG § 2L1.2 cmt n.5 (2000);
Taylor, 286 F.3d at 306-07 (holding that a defendant must satisfy the enumerated criteria contained
in Application Note 5 in order for the court to grant a downward departure). Ibarra-Hernandez
argues that, when the Sentencing Commission deleted Application Note 5 in 2001, it “return[ed] to
sentencing courts the discretion that this Court and other circuits had held was restricted by that
application note.”
       Although Ibarra-Hernandez correctly points out that Application Note 5 has been removed
from the Sentencing Guidelines, the fact remains that the wording of USSG § 2L1.2(b)(1)(A)(ii) was
changed at the same time so as “to expressly distinguish between crimes of violence and simple
aggravated felonies.” United States v. Saucedo-Patino, 358 F.3d 790, 793 (11th Cir. 2004).
Furthermore, under Application Note 1(B)(iii) of USSG § 2L1.2, a “crime of violence” includes
No. 04-2502           United States v. Ibarra-Hernandez                                        Page 4


attempted burglary of a dwelling, the very crime to which Ibarra-Hernandez pled guilty in 1994.
The district court was therefore required under § 2L1.2(b)(1)(A)(ii) to increase by 16 levels the total
offense level of a defendant who, like Ibarra-Hernandez, has pled guilty to such a “crime of
violence.” Although Ibarra-Hernandez presents what appears to be a sympathetic case, the
Sentencing Guidelines do not grant the district court any discretion to depart downward from USSG
§ 2L1.2(b)(1)(A)(ii).
        In this regard, the present case is factually identical to the Eleventh Circuit’s decision in
Saucedo-Patino. The defendant in that case pled guilty to reentering the United States illegally after
being deported following a burglary conviction. Saucedo-Patino had a base offense level of 8 and,
like Ibarra-Hernandez, also claimed that applying the 16-level enhancement to him under § 2L1.2
exaggerated the severity of the burglary. The Eleventh Circuit, in its analysis, reasoned as follows:
        Section 2L1.2(b)(1) used to require that the offense level be increased by 16 if the
        defendant had a prior conviction for any aggravated felony. Because the seriousness
        of the prior aggravated felony could vary greatly, the commentary contained
        [Application Note 5] suggesting that downward departures might be warranted in
        some of the less serious cases.
Id. at 793 (citation omitted) (emphasis removed). In addition, the court observed that
        [w]hen the Sentencing Commission modified § 2L1.2(b)(1) to expressly distinguish
        between crimes of violence and simple aggravated felonies, it also removed
        [Applicaton Note 5] concerning downward departures because it determined that the
        amended graduation of increases negated the need for the departure provision.
Id. at 794.
        Accordingly, the court in Saucedo-Patino determined that “[g]iven that the Commission
chose to distinguish between these two categories—by requiring increases of 8 and 16 levels,
respectively—we must enforce the distinction.” Id. The Eleventh Circuit then affirmed the district
court’s conclusion that it did not possess the requisite discretion to depart downward from USSG
§ 2L1.2(b)(1)(A)(ii). This analysis is equally applicable to the facts in the present case.
        In sum, the Sentencing Guidelines do not afford the district court any discretion to depart
downward under USSG § 2L1.2(b)(1)(A)(ii). But the Sentencing Guidelines as a whole are now
advisory. The district court is therefore free to depart from the overall sentence computed under the
Sentencing Guidelines, provided that it “consider[s] the advisory provisions of the Guidelines and
the other factors identified in 18 U.S.C. § 3553(a),” Jackson, 408 F.3d at 305, and provided that the
resulting sentence is reasonable. Booker, 125 S. Ct. at 767 (“The courts of appeals review
sentencing decisions for unreasonableness.”).
                                        III. CONCLUSION
        For all of the reasons set forth above, we VACATE Ibarra-Hernandez’s sentence and
REMAND the case for resentencing in accordance with the Supreme Court’s decision in United
States v. Booker, 125 S. Ct. 738 (2005). We further hold that the district court did not err in denying
Ibarra-Hernandez’s motion for a downward departure under USSG § 2L1.2(b)(1)(A)(ii).
