                                                                      PUBLISH


             IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                     FOR THE ELEVENTH CIRCUIT
                                                        U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                               12/02/99
                             No. 99-10279                   THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK


                  D. C. Docket No. 98-06167-CR-DTKH



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee/ Cross-Appellant,

                                  versus

JOSE ALFARO-ZAYAS,

                                           Defendant-Appellant/ Cross-Appellee.




                Appeal from the United States District Court
                    for the Southern District of Florida

                           (December 2, 1999)


Before COX, BIRCH and MARCUS, Circuit Judges.



PER CURIAM:
      Jose Alfaro-Zayas appeals his seventy-seven month sentence for illegal re-entry

into the United States after deportation in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

Specifically, he asserts that the district court erred in concluding that it did not have

the discretion to depart downward from the recommended sentence as calculated

under the United States Sentencing Guidelines.

      On December 4, 1998, Alfaro-Zayas pled guilty to re-entry of a deported alien.

See 8 U.S.C. §§ 1326(a), (b)(2). The Presentence Investigation Report ("PSI")

classified his 1992 conviction for transportation/ sale of cocaine base (the “1992 drug

conviction”) as an aggravated felony under 8 U.S.C. § 1101(a)(43)(B) and 21 U.S.C.

§ 802.1 During the sentencing hearing, the court accepted the 1992 drug conviction

as an aggravated felony sufficient to support a sixteen-level increase in the base level

of the current offense under U.S.S.G. § 2L1.2(b)(1)(A). Consequently, the court

found the total offense level to be twenty-one. The PSI also listed Alfaro-Zayas’s

prior convictions for assault with a deadly weapon, battery, automobile burglary, as

well as an earlier conviction re-entry of a deported alien and accorded him a total of

eighteen criminal history points, placing Alfaro-Zayas in Category VI.




      1
       Neither party disputes that the 1992 drug conviction for transportation/ sale of
cocaine base meets the statutory definition of an aggravated felony. Alfaro-Zayas was
sentenced to sixteen months in prison for the 1992 drug conviction.
                                           2
      During the sentencing hearing, Alfaro-Zayas’s counsel made an oral motion

requesting that the court reconsider the 1992 drug conviction and make a downward

departure in the offense level because it overstated the seriousness of his criminal

conduct. Defense counsel explained that Alfaro-Zayas’s conduct underlying the 1992

drug conviction and his classification as an aggravated felon was a twenty-dollar sale

of cocaine base. He argued that the court had the authority to grant his motion and

make a downward departure under U.S.S.G. § 4A1.3 (1998).2

      The district court denied the motion to depart downward because it found that

§ 4A1.3 was inapplicable. The court further concluded that it did not have the

discretion to depart downward from the Sentencing Guidelines because to do so would

"effectively just cross[] out a prior conviction," R2-32, and require the court to

"simply cast[] the sentencing guidelines aside." Id. at 30. Alfaro-Zayas appeals the

court's conclusion that it had no discretion to depart downward given his status as an

aggravated felon.

      Generally, “decisions by a district court not to depart downward from the

prescribed sentencing guidelines range” are not reviewable on appeal. United States


      2
       The policy statement to § 4A1.3 provides that “[i]f reliable information
indicates that the criminal history category does not adequately reflect the seriousness
of the defendant’s past criminal conduct or the likelihood that the defendant will
commit other crimes, the court may consider imposing a sentence departing from the
otherwise applicable guideline range.” U.S.S.G. §4A1.3, p.s.
                                           3
v. Rudisill,187 F.3d 1260, 1265 (11th Cir. 1999). “Such decisions are reviewable,

however, if the district court denies the downward departure because of an erroneous

belief that the court lacked the authority to make such a departure.” Id.

      Alfaro-Zayas urges this court to extend our reasoning in United States v. Webb,

139 F.3d 1390 (11th Cir. 1998), to find that a sentencing court has the authority to

depart downward pursuant to § 4A1.3 when the sentence has been increased under §

2L1.2(b)(1)(A)3 because the defendant was previously convicted of an aggravated

felony. In Webb, we held that "given the appropriate factual determinations,” 139 F.

3d at 1396, ... § 4A1.3 does authorize a sentencing court to downward depart

“regardless of a defendant's status as a career offender under § 4B1.1," id. at 1395.

The reasoning in Webb does not support the conclusion that § 4A1.3 authorizes

downward departure by the sentencing court when the defendant has been classified

as an aggravated felon under § 2L1.2(b)(1)(A).

      Although §§ 4A1.3 and 2L1.2(b)(1)(A) both deal with a defendant’s past

criminal acts, they do so for different purposes. Chapter Four of the Sentencing



      3
         Section 2L1.2 provides a base offense level of eight for the crime unlawfully
entering and remaining in the United States. Subpart (b)(1)(A) further provides that
“[i]f the defendant previously was deported after a criminal conviction, or if the
defendant unlawfully remained in the United States following a removal order issued
after a criminal conviction [and the conviction was for an aggravated felony], increase
[the base offense level]...by 16 levels.”
                                          4
Guidelines designates the criminal history category, while Chapter Two defines

offense conduct.4 Section 4A1.3 provides for horizontal departure to a different

criminal history category when the sentencing court determines that the defendant’s

“criminal history category does not adequately reflect the seriousness of the

defendant’s past criminal conduct or the likelihood that the defendant will commit

other crimes.” U.S.S.G. § 4A1.3, p.s. (emphasis added). In this case, Alfaro-Zayas

does not argue that his criminal history category is not reflective of his past conduct.

Instead, Alfaro-Zayas suggests that his underlying conviction for possession/

transportation of cocaine should not be considered an aggravated felony under §

2L1.2(b)(1)(A). In the past, we have only applied § 4A1.3 “to a pattern of criminal

conduct, not to an individual crime” as Alfaro-Zayas suggests we do here. United

States v. Phillips, 120 F. 3d 227, 232 (11th Cir. 1997).

      Deviation from the offense levels assigned in § 2L1.2 requires the sentencing

court to progress along the vertical axis of the sentencing table to a different offense




      4
       “Under the Guidelines, every sentence is determined by a combination of an
offense- and an offender-based component. . . . The sentencing table indicates the
sentence ranges for possible combinations of offense- and offender-based
components, with the horizontal axis reflecting the offender’s criminal history and the
vertical axis reflecting the appropriate offense level.” United States v. Mogel, 956
F.2d 1555, 1558 (11th Cir. 1992).
                                           5
level.5 “This court has distinguished between ‘horizontal’ and ‘vertical’ departures.”

United States v. Melvin, 187 F.3d 1316, 1323 n.3 (11th Cir. 1999). Section 4A1.3

provides the sentencing court the discretion to move along the horizontal axis of the

sentencing table when it believes the criminal history category assigned by the

Sentencing Guidelines is not appropriate; however, this section does not authorize the

sentencing court to adjust the offense level when the court finds that the underlying

conduct does not support the assigned offense level.6 Thus, the district court correctly

concluded that § 4A1.3 was not applicable to Alfaro-Zayas’s motion that the court

depart downward because his 1992 drug conviction should not be considered an

aggravated felony under § 2L1.2(b)(1)(A).


       5
       U.S.S.G., Chapter Two assigns “varying offense level adjustments to
circumstances that differentiate two instances of a nominally identical offense in the
eyes of the relevant penological goals, retribution and general deterrence.” Mogel,
956 F.2d at1559. The enhancement provided for under § 2L1.2(b)(1)(A) is consistent
with 8 U.S.C. § 1326 which provides an increased maximum sentence for unlawful
re-entry of a deported felon where the reason for the prior deportation was the alien’s
conviction of an aggravated felony. This suggests a “Congressional judgement” that
“the severity of the crime of reentry depends on the reasons for the initial
deportation,” United States v. Campbell, 967 F.2d 20, 24 (2d Cir. 1992), and “the prior conviction
is a critical part of what makes the current reentry wrongful.” Id. at 25.
       6
        Section 4A1.3 does authorize vertical departures when the sentencing court
reaches the highest criminal history category and still finds that the category does not
adequately reflect the seriousness of the defendant’s previous conduct. At that point,
the court may depart by moving vertically along the chart to a higher offense level,
thereby yielding a longer imprisonment range. See United States v. Taylor, 88 F.3d
938, 947-948 ((11th Cir. 1996).
                                                  6
       While not empowered under § 4A1.3, the district court did have the authority

under § 2L1.2 to evaluate the aggravated felony which triggered the increase in

Alfaro-Zayas’s offense level and to depart downward if the seriousness of the

underlying aggravated felony warranted such a departure. See U.S.S.G. § 2L1.2,

comment. (n. 5) (hereinafter “application note five”). Specifically, application note

five provides:


       Aggravated felonies that trigger the adjustment from subsection
       (b)(1)(A) vary widely. If subsection (b)(1)(A) applies, and (A) the
       defendant has previously been convicted of only one felony offense; (B)
       such offense was not a crime of violence or firearms offense; and (C) the
       term of imprisonment imposed for such offense did not exceed one year,
       a downward departure may be warranted based on the seriousness of the
       aggravated felony.



Id. This comment explains that, when the sentencing court finds the delineated

factors within a case, that case may not be within the “heartland” of the Sentencing

Guidelines and the court may consider whether departure is warranted. See 1998

U.S.S.G. Ch. 1, Pt. A., intro. comment (4(b)); see also Koon v. United States, 518

U.S. 81, 92, 116 S.Ct. 2035, 2044. 135 L.Ed. 2d 392 (1996). Further, application note

five suggests that, when the three factors identified are all present in a given case, that

case is more apt to be atypical and the sentencing court is encouraged to make a

downward departure based on those features. Koon, 518 U.S. at 94, 116 S.Ct. at

                                            7
2045; see also United States v. Diaz-Diaz, 135 F.3d 572, 581 (8th Cir. 1998) (finding

that application note five made “the ‘seriousness of the aggravated felony’ ... an

encouraged factor upon which a departure may be based”).

      All the elements of application note five are not present in Alfaro-Zayas’s case.

While we cannot operate as factfinders, it is evident from the record that Alfaro-Zayas

has been convicted of more than one felony. See PSI at pp. 5-9. These prior

convictions remove Alfaro-Zayas’s case from the realm for which departures are

encouraged by application note five without any further inquiry into the seriousness

of the predicate felony conviction. See United States v. Chavez-Valenzuela, 170 F.3d

1038 (10th Cir. 1999)( finding § 2L1.2, comment. (n. 5) inapplicable to a motion for

downward departure when one of the three stated elements is not present).

      While Alfaro-Zayas’s case does not present the combination of factors upon

which the Sentencing Commission has encouraged departure, Alfaro-Zayas requested

that the court consider the amount of the drugs involved in his 1992 drug conviction

as a basis for departure. The amount of drugs involved in a drug conviction is not a

factor the Sentencing Commission has prohibited or discouraged a sentencing court

from considering when determining whether to depart from the recommended

sentence. “A sentencing court may depart on the basis of a factor not addressed by

the Sentencing Commission if the court determines that the factor takes the case out


                                          8
of the Guideline’s heartland after considering the ‘structure and theory of both the

relevant individual guidelines and the Guidelines taken as a whole.’” Melvin, 187

F.3d at 1321 (quoting Koon, 518 U.S. at 109, 116 S.Ct. at 2035).

       Therefore, the district court could have departed downward if, after engaging

in the analysis required by Koon, it found circumstances that removed Alfaro-Zayas’s

case from the heartland of the Sentencing Guidelines. See United States v. Sanchez-

Rodriguez, 161 F.3d 556, 563 (9th Cir. 1998) (en banc) (concluding that, under the

Koon analysis, the district court may consider the nature of the aggravated felony

when deciding whether to depart downward from the Guideline’s sentencing range).7

See also United States v. Robles-Medina, No. 98-4172 (10th Cir. June 23, 1999)



       7
        Alfaro-Zayas urged the district court to consider the small amount of cocaine
involved in his 1992 drug conviction as a basis for justifying a downward departure
in his sentence. The government argued that the district court was prohibited from
considering the quantum of drugs involved in the predicate aggravated felony by our
decision in United States v. Rucker, 171 F.3d 1359 (11th Cir. 1999) (distinguishing Sanchez-
Rodriguez and holding that a sentencing court may not depart downward from the USSG § 4B1.4
Armed Career Criminal Guideline based upon its conclusion that, although the defendant’s prior
convictions fell within the statutory definition of serious drug offenses, they involved only small
amounts of drugs and therefore were minor). We note that, while our decision in Rucker is
informative to this case, it is not despositive. The analysis required by Koon necessitates that the
structure and theory of the “relevant individual guideline” be considered to determine whether a
particular circumstance takes the case out of the Sentencing Guidelines’ heartland. Koon, 518 U.S.
at 96, 116 S.Ct. at 2045. Alfaro-Zayas was sentenced under sentencing guideline § 2L1.2 while
Rucker involved § 4B1.4. We further note that, in other contexts, we have held that the Sentencing
Guidelines do not preclude a district court from considering the amount of drugs as a factor. See
e.g., United States v. De Varon,175 F.3d 930, 943 (11th Cir. 1999) (en banc) (finding that the
Sentencing Guidelines are not “intended to preclude a district court from considering the amount
of drugs as a factor in the context of minor participants”).

                                                 9
(finding that, under Koon and U.S.S.G. § 2L1.2(b)(1)(B), “the seriousness of the

‘aggravated felony’ may be a valid basis for downward departure.”)8. A sentencing

court determines whether a case falls outside the heartland of the Sentencing

Guidelines by carefully assessing the facts of the case and “comparing those facts to

the facts of other cases falling within the guideline’s heartland.” United States v.

Hoffer, 129 F.3d 1196, 1200 (11th Cir. 1997) In this circuit, a sentencing court “must

articulate the specific mitigating circumstances upon which it relies and the reasons

why these circumstances take a case out of the guidelines’ heartland.” United States

v. Tomono, 143 F. 3d 1401, 1403 (11th Cir. 1998) (per curiam). “Moreover, the court

must bear in mind the Commission’s expectation that departures based on grounds not

mentioned in the Guidelines will be highly infrequent.” United States v. Steele, 178

F.3d 1230, 1238 (11th Cir. 1999) (internal quotations and citations omitted), cert.

denied, ___ U.S. ___, 120 S. Ct. 335, 145 L. Ed. 2d 261 (1999).

      Here, the district court made no findings of any circumstances that remove

Alfaro-Zayas’s case from the heartland of § 2L1.2(b)(1)(A). Instead, the court

expressed its frustration with the sentence called for by the guidelines:

      Now, my personal view of that is that that is madness. . . .



      8
      Robles-Medina is an unpublished opinion cited solely for its persuasive value
pursuant to the terms and conditions of 10th Cir. R. 36.3.
                                          10
      I just think it makes very good sense that before people are required to
      spend these tremendous periods in jail that there be some reasonable
      period in jail in an effort to deter that conduct. . . .

      I don’t understand any principled way that I can depart downward other
      than sort of a gut feeling that, yes, this sounds like a terribly harsh
      sentence and I ought to disregard what seem to be the predicates.

      I don’t think I can do that ... short of simply casting the sentencing
      guidelines aside. So I am going to deny the motion to depart downward.

R2-27, 29 - 30. We have recognized that “[d]isagreement with the policy choices

underlying the Sentencing Guidelines and sentencing statutes is not a ground for

downward departure.” United States v. Gilbert, 138 F.3d 1371, 1373 (11th Cir. 1998)

(per curiam), cert. denied, __ U.S. __, 119 S. Ct. 1754, 143 L. Ed. 2d 787 (1999).

      Although there were several potential bases which authorize the district court

to depart downward from the sentence calculated for Alfaro-Zayas under §

2L1.2(b)(1)(A), we agree with the district court that none of these bases were

applicable to this case. The district court reviewed the facts of Alfaro-Zayas’s case

and made no findings suggesting that it fell outside the heartland of § 2L1.2(b)(1)(A).

Thus, the district court was left only with a policy-based objection to the

recommended sentence. The district court correctly noted that its disagreement with

the policy under which Alfaro-Zayas’s sentence was calculated did not provide it with

authority to depart downward. Accordingly, the sentence as imposed by district court

is AFFIRMED.

                                          11
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