                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 12-2590
                                  _____________

                          UNITED STATES OF AMERICA

                                         v.

                            ANTONIO GARCIA-CELIS,

                                              Appellant
                                   ____________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. No. 1-11-cr-00320-001)
                    District Judge: Honorable Sylvia H. Rambo
                                   ____________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 January 10, 2013

             Before: SCIRICA, AMBRO, and FUENTES, Circuit Judges.

                              (Filed: January 18, 2013)
                                   ____________

                            OPINION OF THE COURT
                                 ____________


FUENTES, Circuit Judge:

      In this appeal, we are asked to consider whether the District Court improperly

denied Antonio Garcia-Celis’s request for a downward departure when it sentenced him



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to 27 months’ imprisonment for a conviction for illegal reentry. For the reasons set forth

below, we will affirm the District Court’s judgment and sentence.

                                             I.

       Because we write primarily for the parties, we set forth only the facts and

procedural history relevant to our conclusion.

       Garcia-Celis is a Mexican citizen. In May 1997, after being convicted in Oregon

state court of robbery in the third degree and sentenced to 20 days’ imprisonment and 24

months’ probation, Garcia-Celis was ordered removed from the United States by an

immigration court and advised that he was not permitted to apply for readmission for a

period of five years. However, in 2002, Garcia-Celis reentered the United States. In July

2008, after being convicted of driving under the influence in Pennsylvania state court,

Garcia-Celis was again removed from the United States, and he was advised that he could

not apply for readmission for a period of twenty years. Around July 2011, Garcia-Celis

again illegally reentered the United States. In October 2011, after a second conviction for

driving under the influence in Pennsylvania state court, Garcia-Celis admitted to

immigration agents that he had been removed from the United States and reentered

without permission. On December 19, 2011, Garcia-Celis pleaded guilty to illegal reentry

after a felony conviction, in violation of 8 U.S.C. §§ 1326(a), (b)(1).

       Prior to sentencing, the Probation Office prepared a Presentence Investigation

Report (“PSR”) and recommended an offense level of 17 and criminal history category of

III, resulting in an advisory Guidelines range of 30 to 37 months for Garcia-Celis. The

total offense level included a 12-level enhancement under U.S.S.G. § 2L1.2(a) for prior

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removal after a conviction for a crime of violence—the Oregon robbery conviction. The

criminal history category included four points from the two DUI convictions and

assigned zero points for the Oregon robbery conviction.

       On May 21, 2012, the District Court conducted a sentencing hearing during which

Garcia-Celis objected to the 12-level enhancement. Section 2L1.2(a) provides a 12-level

enhancement for reentering after a prior removal following a conviction for a felony that

is a “crime of violence” that did not receive criminal history points in the Guidelines

calculation. Garcia-Celis argued that, based on application note 7, a departure “may be

warranted” when the “offense level substantially overstates . . . the seriousness of a prior

conviction . . . and the prior conviction does not meet the definition of aggravated felony

at 8 U.S.C. § 1101(a)(43).” U.S.S.G. § 2L1.2(a) app. n. 7. Garcia-Celis argued to the

District Court that a downward departure was warranted in this case because an offense

level of 17 overstates the seriousness of his criminal history, given that the prior robbery

conviction was not an aggravated felony and resulted in a sentence of only 20 days’

imprisonment. The District Court initially responded that the robbery was an aggravated

felony because “[i]t’s what he could potentially face” but was corrected by the

Government who explained that the Court must look at the “actual sentence” under 8

U.S.C. § 1101(a)(43), rather than the potential sentence, in determining whether the

robbery conviction was an aggravated felony. (App. 37.) Garcia-Celis then argued in

support of a second basis for a downward departure.

       The District Court ultimately rejected both of Garcia-Celis’s requests for a

downward departure. The District Court noted that Garcia-Celis’s alcohol problem had

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led to the endangerment of other people, commenting that one of the DUI convictions

involved an accident with another vehicle, and that Garcia-Celis drove without a license.

This led to the District Court’s findings that Garcia-Celis “continu[ed] to violate the law”

and that “[h]e has no respect for it.” (App. 44.) Though the District Court declined to

depart from a total offense level of 17, following argument on Garcia-Celis’s criminal

history and its effect on his eligibility for the fast-track sentencing program, the District

Court sua sponte granted a downward variance in his criminal history category by one

level, reducing it from level III to level II. The defense responded and stated, “I want to

make sure you understand my argument,” to which the District Court replied,

acknowledging its understanding of its legal authority, “I do understand your argument.

But I still think it’s discretionary with me with regard to your 2L1.3 footnote 7.” (App.

45.) With a total offense level of 17 and a criminal history category of II, Garcia-Celis

had an advisory Guidelines range of 27-33 months. The District Court then sentenced

Garcia-Celis to the 27 months’ imprisonment and three years of supervised release.

Garcia-Celis timely appealed.

                                             II.

       The District Court had jurisdiction pursuant to 18 U.S.C. §§ 3231 and 3583(e). We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise

plenary review over a district court’s rulings on questions of law and interpretation of the

Sentencing Guidelines. United States v. Doe, 564 F.3d 305, 307 n. 2 (3d Cir. 2009);

United States v. Mateo, 560 F.3d 152, 154 (3d Cir. 2009). However, we lack jurisdiction

to review a district court’s application of its discretion to deny a downward departure.

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United States v. Torres, 209 F.3d 308, 309 n. 1 (3d Cir. 2000) (“Where, as here, the

District Court understood that it had the ability to depart but refused to do so, we lack

jurisdiction to review that refusal.”); United States v. Denardi, 892 F.2d 269, 271-72 (3d

Cir. 1989) (“To the extent this appeal attacks the district court’s exercise of discretion in

refusing to reduce the sentences below the sentencing guidelines, it will be dismissed for

lack of appellate jurisdiction.”). On appeal, Garcia-Celis argues that the District Court

misunderstood its authority to grant a downward departure in this case. He argues that the

District Court denied the departure because of its view that an “aggravated felony” turned

on whether the conviction had a potential sentence of over one year, rather than whether a

one-year sentence was actually imposed. The Government, however, contends that the

District Court understood its legal authority and exercised its discretion in denying the

request. Thus, this appeal requires us to determine whether we have jurisdiction based on

whether the District Court ruled that it did not have the authority or discretion to grant a

downward departure.

       At sentencing, Garcia-Celis argued that under application note 7 to section

2L1.2(a), a downward departure was warranted because the offense level substantially

overstated the seriousness of his prior robbery conviction and because the robbery

conviction did not meet the definition of an aggravated felony. The Government then

responded and emphasized that the application note stated that a departure “may be

warranted” under some circumstances, but that the Government believed “it’s not

appropriate in this particular matter.” (App. 36-37.) Regarding the definition of an

“aggravated felony,” the Government correctly informed the District Court that the prior

                                             5
robbery conviction “is not an aggravated felony in this particular circumstance,” provided

the definition for an aggravated felony under the Immigration and Nationality Act, and

stated that the robbery conviction did not qualify because “[Garcia-Celis’s] sentence

didn’t exceed one year.” (App. 37.) However, the District Court responded, “No, no, no.

He wasn’t sentenced to that. It’s what he could potentially face, is it not?” (App. 37.) The

Government immediately corrected the District Court and stated that the “actual

sentence” must “exceed[] one year for it to be an aggravated felony.” (Id.)

       After further argumentation by the parties on Garcia-Celis’s second requested

downward departure based on his ineligibility for the fast track program, the District

Court ruled, “I’m not going to give a downward departure, but I will give a variance of

one level in consideration of his criminal history. I will not exercise the discretion to

grant him consideration for the fast track program. . . . But I will grant him a variance

based on the criminal history.” (App. 43-44.) As already noted, the defense responded,

“Wait a minute. . . . I want to make sure you understand my argument.” (App. 44-45.)

The District Court then stated, “I do understand your argument. But I still think it’s

discretionary with me with regard to your 2L1.3 footnote 7. So it doesn’t make any

difference whether I would have granted him a departure as opposed to a variance.”

(App. 45.)

       It is clear that the District Court understood the discretionary nature of the

departure under section 2L1.2(a). At no point did the Court indicate that it lacked the

authority to depart. To the contrary, it recognized that it had the ability to depart but was

refusing to do so. Thus, we lack the jurisdiction to review the District Court’s decision.

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United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006) (“[A]s it was pre-Booker,

courts of appeals post-Booker, have no authority to review discretionary denials of

departure motions in calculating sentencing ranges.”).

                                           III.

      For the foregoing reasons, we will affirm the District Court’s judgment and

sentence.




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