                           PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,               
                 Plaintiff-Appellant,
                 v.                             No. 01-4548
DANIEL ALEJO-ALEJO,
               Defendant-Appellee.
                                        
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
                William L. Osteen, District Judge.
                            (CR-00-230)

                      Argued: December 6, 2001

                       Decided: April 16, 2002

      Before WILKINSON, Chief Judge, and MICHAEL and
                  TRAXLER, Circuit Judges.



Vacated and remanded by published opinion. Chief Judge Wilkinson
wrote the majority opinion, in which Judge Traxler joined. Judge
Michael wrote a dissenting opinion.


                            COUNSEL

ARGUED: Lawrence Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellant. William Carlton Ingram,
Jr., First Assistant Federal Public Defender, Greensboro, North Caro-
lina, for Appellee. ON BRIEF: Benjamin H. White, Jr., United States
Attorney, Arnold L. Husser, Assistant United States Attorney,
2                   UNITED STATES v. ALEJO-ALEJO
Greensboro, North Carolina, for Appellant. Louis C. Allen, III, Fed-
eral Public Defender, Greensboro, North Carolina, for Appellee.


                             OPINION

WILKINSON, Chief Judge:

   Daniel Alejo-Alejo pleaded guilty to one count of being an illegal
alien found in the United States after deportation, in violation of 8
U.S.C. § 1326(a) and (b)(2). At the sentencing hearing, the district
court departed downward from the applicable Sentencing Guideline
range by reducing the offense level that would otherwise have
resulted. Because we find that the district court erred in departing
downward when the defendant did not meet the Sentencing Commis-
sion’s enumerated requirements for such a departure, we vacate the
sentence in this case and remand for resentencing.

                                  I.

   Daniel Alejo-Alejo is a native and citizen of Mexico who entered
the United States in 1989 when he was 17 years old. He remained in
the United States and resided in the Rockingham, North Carolina
area. In 1994, Alejo-Alejo was convicted in North Carolina state court
for, inter alia, misdemeanor death by motor vehicle, in violation of
N.C. Gen. Stat. § 20-141.4(a)(2), and felony failure to stop after an
accident and to remain at the scene, in violation of N.C. Gen. Stat.
§ 20-166(a). The charges arose out of a motor vehicle accident in
which Alejo-Alejo attempted to pass the car in front of him at the
same time that a third vehicle, which was behind Alejo-Alejo,
attempted to pass as well. Alejo-Alejo’s vehicle collided with the
third vehicle. That vehicle flipped over and the driver of that car, a
deputy sheriff, was killed. Alejo-Alejo fled the scene of the accident
and was later arrested. Alejo-Alejo received a five year sentence and
was released from prison on October 1, 1996.

  While incarcerated, Alejo-Alejo married an American citizen. Once
he was released from prison, he remained in the United States. He
applied for and received a work permit and found employment in
                     UNITED STATES v. ALEJO-ALEJO                      3
North Carolina. However, a 1997 change in the immigration laws
required that any non-citizen who, like Alejo-Alejo, had a previous
felony conviction be deported. The law applied retroactively and as
a result, Alejo-Alejo was deported in March 2000.

   At some point after his deportation, Alejo-Alejo returned to the
United States illegally. On June 29, 2000, INS agents arrested Alejo-
Alejo. He was charged with violating 8 U.S.C. §§ 1326(a) and (b)(2),
which made illegal the re-entry of a deported alien after conviction
for an aggravated felony. He pleaded guilty to being an illegal alien
found in the United States after deportation. A Presentence Report
("PSR") was then prepared for sentencing.

   The PSR classified the misdemeanor death by motor vehicle as a
felony because it was punishable by a term of up to two years in
prison and thus qualified as a felony for these purposes. See 8 U.S.C.
§ 1101(a)(43) (defining aggravated felony). Because his prior depor-
tation arose from a conviction for an aggravated felony, the PSR rec-
ommended that Alejo-Alejo receive an offense level enhancement
under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2000).
The addition of a 16-level enhancement to the base offense level of
8, U.S. Sentencing Guidelines Manual § 2L1.2(a), partially offset by
a 3 level credit for acceptance of responsibility, U.S. Sentencing
Guidelines Manual § 3E1.1, resulted in a total offense level of 21.
Alejo-Alejo had a Criminal History Category of III. Therefore,
according to the Sentencing Guidelines, the range for imprisonment
was 46 to 57 months in prison. Alejo-Alejo conceded that the PSR
properly calculated his offense level and the district court ratified the
parties’ agreement on this issue.

   Although he conceded that the PSR properly calculated his offense
level under § 2L1.2, Alejo-Alejo requested a downward departure
based, inter alia, on the alleged relative lack of seriousness of the
offense that triggered the aggravated felony enhancement. Alejo-
Alejo argued that the district court could depart under a "heartland"
theory. See U.S. Sentencing Guidelines Manual ch. 1, pt. A, introduc-
tory cmt. 4(b) & § 5K2.0 (2000). The United States opposed such a
departure and argued that Application Note 5, U.S. Sentencing Guide-
lines Manual § 2L1.2, cmt. n.5 (2000), delineated the only circum-
stances under which a district court could consider a departure based
4                   UNITED STATES v. ALEJO-ALEJO
on the seriousness of the underlying felony. Application Note 5
allows a downward departure as follows:

    If subsection (b)(1)(A) applies [the 16-level aggravated fel-
    ony enhancement], 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 an offense did not
    exceed one year, a downward departure may be warranted
    based on the seriousness of the aggravated felony.

U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n.5. The United
States contended, and Alejo-Alejo agreed, that he did not satisfy the
criteria set forth in Application Note 5 because his sentence for the
underlying aggravated felony had exceeded one year. The district
court, however, determined that the convictions that triggered the
offense level increase under § 2L1.2(b)(1)(A) differed in kind from
the offenses the Sentencing Commission intended to subject to the
aggravated felony enhancement, notwithstanding the fact that Alejo-
Alejo failed to meet the criteria set forth in Application Note 5. The
district court then departed downward eight offense levels, shifting
the imprisonment range from 46-57 months to 18-24 months, and sen-
tenced Alejo-Alejo to 21 months in prison. The United States appeals
and challenges the authority of the district court to depart downward
in this case.

                                  II.

   Alejo-Alejo contends that he was due a downward departure
because his prior felony conviction was outside the heartland of
aggravated felonies. He fails, however, to meet the criteria the Sen-
tencing Commission ("Commission") set forth in Application Note 5
for downward departures based on the seriousness of the aggravated
felony. The Commission has specifically set forth the criteria for
when a downward departure should be made based on the seriousness
of the prior felony conviction and we are not in a position to second
guess that decision.

                                  A.

   A sentencing court may depart and "impose a sentence outside the
range established by the applicable guidelines, if the court finds ‘that
                     UNITED STATES v. ALEJO-ALEJO                      5
there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into account by the Sentencing
Commission in formulating the guidelines that should result in a sen-
tence different from that described.’" U.S. Sentencing Guidelines
Manual § 5K2.0 (quoting 18 U.S.C. § 3553(b)). With the exception of
a few factors that the Guidelines specifically note may not be consid-
ered as grounds for departures by the sentencing court, the Guidelines
do not limit "‘the kinds of factors, whether or not mentioned any-
where else in the guidelines, that could constitute grounds for depar-
ture in an unusual case.’" Koon v. United States, 518 U.S. 81, 93
(1996) (quoting U.S. Sentencing Guidelines Manual ch. 1, pt. A,
introductory cmt. 4(b)). However, because the Guidelines were estab-
lished, inter alia, to create uniformity and regularity in the sentencing
of similarly situated defendants, "[b]efore a departure is permitted,
certain aspects of the case must be found unusual enough for it to fall
outside the heartland of cases in the Guideline." Id. at 98. This is
often referred to as the heartland theory for departures. See U.S. Sen-
tencing Guidelines Manual ch. 1, pt. A, introductory cmt. 4(b) &
§ 5K2.0.

   A district court may determine that a case does not fall within the
Guideline’s heartland and exercise its discretion to depart downward
only if "the circumstances and consequences of a case are ‘atypical’
or ‘unusual.’" United States v. Rybicki, 96 F.3d 754, 757 (4th Cir.
1996) (citing 18 U.S.C. § 3553(b)). A district court must decide what,
if any, circumstances or consequences of the offense make the case
"atypical" and identify those factors for consideration in sentencing.
Id. Once the district court has identified factors which could poten-
tially remove a case from the heartland, each factor must be identified
"according to the Guidelines’ classification as a ‘forbidden,’ ‘encour-
aged,’ ‘discouraged,’ or ‘unmentioned’ basis for departure." Id.
Encouraged factors are normally an appropriate basis for departure,
unless the factors have been adequately taken into account by the
applicable guideline. See Koon, 518 U.S. at 96; Rybicki, 96 F.3d at
757-58. Conversely, discouraged factors may only be relied on for a
departure "in exceptional cases." Koon, 518 U.S. at 95 (quoting U.S.
Sentencing Guidelines Manual ch. 5, pt. H, introductory cmt.); Ryb-
icki, 96 F.3d at 758. Departures based on unmentioned factors should
be "highly infrequent." Koon, 518 U.S. at 96 (quoting U.S. Sentenc-
ing Guidelines Manual ch. 1, pt. A, cmt. 4(b)); Rybicki, 96 F.3d at
6                   UNITED STATES v. ALEJO-ALEJO
758. Finally, forbidden factors may not be considered at all. Koon,
518 U.S. at 95-96.

                                  B.

   Alejo-Alejo argues that the facts of his case were atypical and as
such were not adequately considered by the Commission. We dis-
agree. "Given the comprehensive sentencing structure embodied in
the guidelines, ‘[o]nly rarely will we conclude that a factor was not
adequately taken into consideration by the Commission.’" United
States v. Weinberger, 91 F.3d 642, 644 (4th Cir. 1996) (quoting
United States v. Jones, 18 F.3d 1145, 1149 (4th Cir. 1994)). In draft-
ing the enhancement provision at issue in this case, the Commission
explicitly adopted the broad definition of "aggravated felony" con-
tained in 8 U.S.C. § 1101(a)(43). See U.S. Sentencing Guidelines
Manual § 2L1.2, cmt. n.1. In so doing, the Commission expressly rec-
ognized that the crimes "that trigger the adjustment from subsection
(b)(1)(A) [the 16-level aggravated felony enhancement] vary widely."
U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n.5. While appel-
lant argues that the aggravated felony of which he was convicted,
death by motor vehicle, did not involve any criminal intent and for
that reason is distinguishable from the other aggravated felonies, the
Commission adopted a broad definition of aggravated felony that
included this offense. The Commission then dealt directly with poten-
tial problems that could result from such a broad definition. It estab-
lished three criteria that must be met before a district court may
consider a downward departure based on the seriousness of the under-
lying felony. Appellant did not meet those criteria, and to excuse that
failure now would simply be to substitute our judgment for that of the
Commission.

   When the district court opted to depart based on a general heartland
principle, U.S. Sentencing Guidelines Manual § 5K2.0, it did not
address the Commission’s directives in the commentary to § 2L1.2.
The Commission, by establishing three criteria that must be met
before a downward departure may be considered based on the serious-
ness of the underlying felony, defined the heartland of cases included
in § 2L1.2 to be all those not covered by the criteria in Application
Note 5. To allow courts to redefine the heartland of cases and then
depart when they believe the sentence is outside this heartland ignores
                     UNITED STATES v. ALEJO-ALEJO                       7
the goals of regularity and uniformity in sentencing that the Guide-
lines were designed to promote.

   This approach to the Sentencing Guidelines generally, and to
§ 2L1.2 specifically, has already been adopted by four other circuits.1
See United States v. Palomino-Rivera, 258 F.3d 656, 659-60 (7th Cir.
2001); United States v. Marquez-Gallegos, 217 F.3d 1267, 1270-71
(10th Cir), cert. denied, 531 U.S. 905 (2000); United States v. Yanez-
Huerta, 207 F.3d 746, 750 n.3 (5th Cir.), cert. denied, 531 U.S. 981
(2000); United States v. Tappin, 205 F.3d 536, 539-42 (2d Cir.), cert.
denied, 531 U.S. 910 (2000). As the Tenth Circuit noted in Marquez-
Gallegos, the Commission had acknowledged the possibility that,
because of the large number of qualifying aggravated felonies, the
enhancement provision would apply frequently and "may result in a
disproportionately harsh sentence." 217 F.3d at 1270. However, the
Tenth Circuit also found that the "Commission, in promulgating
Application Note 5, implicitly defined the ‘heartland’ of such cases
to be all those not falling within the class delineated therein." Id. at
1270-71. Thus, the Tenth Circuit concluded that a district court
"lack[s] discretion to depart under § 5K2.0" based on the seriousness
of the underlying felony when the defendant fails to satisfy the
requirements of Application Note 5. Id. at 1271. We agree with this
reasoning.

   The Second Circuit’s reasoning in Tappin is similarly sound. See
205 F.3d at 539-42. There, the court stated that "[t]o permit a sentenc-
ing court in these circumstances to depart downwardly absent satis-
  1
    We recognize that this decision is also in some tension with the
approach in three other circuits. See United States v. Alfaro-Zayas, 196
F.3d 1338, 1342 (11th Cir. 1999); United States v. Sanchez-Rodriguez,
161 F.3d 556, 562-63 & n.12 (9th Cir. 1998) (en banc); United States v.
Diaz-Diaz, 135 F.3d 572, 579-82 (8th Cir. 1998). We, however, find
these authorities unpersuasive and note that in Sanchez-Rodriguez this
issue was discussed only briefly in dictum, that Alfaro-Zayas relies
almost exclusively on the Sanchez-Rodriguez decision, and that in Diaz-
Diaz the court affirmed the district court’s "fact-based judgment call,"
135 F.3d at 581, to depart downward without considering whether the
defendant’s apparent failure to satisfy the criteria in Application Note 5
precluded such a departure. See United States v. Tappin, 205 F.3d 536,
541 n.7 (2d Cir. 2000).
8                    UNITED STATES v. ALEJO-ALEJO
faction of all three criteria in Application Note 5 would . . . render the
Note effectively meaningless." Id. at 5421.

   Alejo-Alejo contends that we should read Application Note 5 as
setting forth criteria that, when met, turn the seriousness of the aggra-
vated felony into an encouraged factor for departure. And when the
criteria in Note 5 are not met, a departure based on the seriousness
of or lack of intent required for the aggravated felony is simply an
unmentioned or even a discouraged factor for departure. In other
words, Alejo-Alejo argues that Application Note 5 does not prohibit
a downward departure when the criteria are not met, it just does not
encourage such a departure. To begin with, urging a downward depar-
ture based on a discouraged or unmentioned factor would hardly
resolve the matter in Alejo-Alejo’s favor. As noted, the Supreme
Court has emphasized that discouraged factors may be the basis for
departure only "in exceptional cases" and departures based on unmen-
tioned factors will be "highly infrequent," Koon, 518 U.S. at 95-96,
and it is anything but clear that a lethal automobile crash where some-
one flees the scene and is then sentenced to five years in prison repre-
sents the sort of circumstances that would warrant departing
downward on that basis. In all events, like the Second Circuit in Tap-
pin, we find nothing in the "sentencing guidelines, policy statements,
and official commentary of the Sentencing Commission," 18 U.S.C.
§ 3553(b), to support appellant’s reading of Application Note 5. See
Tappin, 205 F.3d at 541.

   The Commission took into account the varying severities of aggra-
vated felonies when it promulgated Application Note 5 and "defined
the heartland of § 2L1.2 by exclusion." Palomino-Rivera, 258 F.3d at
659. Because this factor was "adequately taken into account" by the
Commission when § 2L1.2 was promulgated, it is not the proper basis
for a departure unless the defendant has met the criteria enumerated
in Application Note 5. 18 U.S.C. § 3553(b). To find otherwise would
reduce the criteria set forth in Application Note 5 to a mere sugges-
tion that sentencing courts may disregard as they see fit.

                                   III.

   At heart this case is disarmingly simple. The Sentencing Commis-
sion set forth three criteria that must be satisfied before "a downward
                     UNITED STATES v. ALEJO-ALEJO                      9
departure may be warranted." Alejo-Alejo did not meet those three
criteria and thus was not eligible for a downward departure. Because
he received such a departure, we must vacate the sentence in his case.2

                                        VACATED AND REMANDED

MICHAEL, Circuit Judge, dissenting:

   I respectfully dissent. The majority’s decision to deny Daniel
Alejo-Alejo a downward departure diminishes the special power that
the Sentencing Guidelines give district courts to determine whether a
particular factor takes a case out of the "heartland" of typical cases
covered by each guideline. Because Alejo-Alejo’s underlying crime
of misdemeanor death by vehicle lacks the element of criminal intent
found in other aggravated felonies, the district court properly deter-
mined that Alejo-Alejo’s case is sufficiently atypical to warrant an
eight-level downward departure.

                                   I.

   Alejo-Alejo, who is an alien, pled guilty to reentering the United
States illegally after he had been deported. See 8 U.S.C. § 1326(a). He
was deported following a conviction in North Carolina for misdemea-
nor death by motor vehicle. The guideline covering illegal reentry,
§ 2L1.2, calls for a sixteen-level enhancement if the defendant was
deported after a conviction for an aggravated felony. U.S.S.G.
§ 2L1.2(b)(1)(A) (2000). Application note 1 of the guideline incorpo-
rates the definition of "aggravated felony" appearing at 8 U.S.C.
§ 1101(a)(43). U.S.S.G. § 2L1.2, cmt. n.1 (2000). Alejo-Alejo’s mis-
demeanor death by vehicle qualifies as an aggravated felony under 8
U.S.C. § 1101(a)(43)(F) because it was a crime of violence that car-
ried a prison term of at least one year. The district court departed
  2
    The Sentencing Guidelines were amended on November 1, 2001 and
the Commission adopted a more graduated sentencing structure in
§ 2L1.2 and deleted Application Note 5. Both Alejo-Alejo and the gov-
ernment also appear to have made some alternative arguments with
respect to the sentencing determination below. The effect, if any, of the
alternative arguments and the amended guidelines is something we leave
for the district court on remand.
10                  UNITED STATES v. ALEJO-ALEJO
downward from the sixteen-level enhancement on the ground that
Alejo-Alejo’s predicate offense (the motor vehicle crime) lacked the
element of intent, thus placing it outside the heartland of aggravated
felonies. The district court found that the Sentencing Commission in
promulgating Guidelines § 2L1.2(b)(1)(A) "did not take into consid-
eration those offenses classified as aggravated felonies where there
was no criminal intent on the part of the defendant or the offense was
committed unintentionally." In concluding that it was free to depart
downward, the court emphasized that misdemeanor death by motor
vehicle does not require any criminal intent, which distinguishes it
from other aggravated felonies.

   The majority contends that lack of criminal intent can never be a
basis for downward departure under § 2L1.2 because application note
5 provides the exclusive criteria for departing downward based on the
seriousness of the underlying felony. Application note 5 reads as fol-
lows:

     Aggravated felonies that trigger the adjustment from subsec-
     tion (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 vio-
     lence or firearms offense; and (C) the term of imprisonment
     imposed for such offense did not exceed one year, a down-
     ward departure may be warranted based on the seriousness
     of the aggravated felony.

U.S.S.G. § 2L1.2, cmt. n.5 (2000). According to the majority, the
Commission "defined the heartland of cases included in § 2L1.2 to be
all those not covered by the [three] criteria in Application Note 5."
Ante at 6. Because Alejo-Alejo cannot meet all of the criteria of appli-
cation note 5, the majority concludes that his case is within the heart-
land, making him ineligible for a downward departure. I respectfully
suggest, for the following reasons, that the majority is wrong.

                                  A.

   The sentencing statute authorizes a district court to depart when it
finds "an aggravating or mitigating circumstance of a kind, or to a
degree, not adequately taken into consideration by the Sentencing
                     UNITED STATES v. ALEJO-ALEJO                     11
Commission in formulating the guidelines." 18 U.S.C. § 3553(b).
Each guideline "carve[s] out a ‘heartland,’ a set of typical cases
embodying the conduct that [the] guideline describes." U.S.S.G. ch.
1, pt. A, introductory cmt. 4(b) (2000). As the Supreme Court has
said, "[b]efore a departure is permitted, certain aspects of a case must
be found unusual enough for it to fall outside the heartland of cases
in the Guidelines." Koon v. United States, 518 U.S. 81, 98 (1996). It
is the "atypical case, one to which a particular guideline linguistically
applies but where conduct significantly differs from the norm," that
may be outside the heartland and suitable for a departure. U.S.S.G.
ch. 1, pt. A, introductory cmt. 4(b) (2000). The Commission lists sev-
eral factors that are never a basis for departure. These are: race, sex,
national origin, creed, religion, and socioeconomic status (U.S.S.G.
§ 5H1.10); lack of guidance as a youth (§ 5H1.12); drug or alcohol
dependence (§ 5H1.4); economic coercion and duress (§ 5K2.12); and
post-sentence rehabilitation (§ 5K2.19). Apart from these relatively
few factors, "the Commission does not intend to limit the kinds of
factors . . . that could constitute grounds" for taking a case out of the
heartland and departing if the case is sufficiently unusual. U.S.S.G.
ch. 1, pt. A, introductory cmt. 4(b) (2000).

   The majority holds that lack of criminal intent, which is not men-
tioned in application note 5, can never be a factor that might take a
§ 2L1.2 case out of the heartland of aggravated felonies and provide
a basis for departure under the catchall provision, § 5K2.0. The hold-
ing thus has the effect of categorically proscribing lack of criminal
intent as a basis for departure. This result contradicts what the
Supreme Court and our court have said. It also overlooks the Com-
mission’s formal practice of specifically listing any factor that cannot
provide grounds for departure. As the Supreme Court put it in Koon,
the Commission has "determin[ed] that, with few exceptions, depar-
ture factors should not be ruled out on a categorical basis." Koon, 518
U.S. at 108. We have said the same thing: "Any factor ‘not expressly
forbidden’ by the Guidelines ‘potentially may serve as a basis for
departure.’" United States v. Debeir, 186 F.3d 561, 566 (4th Cir.
1999) (quoting United States v. Brock, 108 F.3d 31, 35 (4th Cir.
1997)) (emphasis added). When the Guidelines intend to proscribe
categorically a factor as a basis for departure, they do so expressly
and clearly. See e.g., U.S.S.G. § 5H1.10 (stating that race, sex,
national origin, creed, etc. are "factors [that] are not relevant in the
12                  UNITED STATES v. ALEJO-ALEJO
determination of a sentence."). All of this means that "a federal
court’s examination of whether a factor can ever be an appropriate
basis for departure is limited to determining whether the Commission
has proscribed, as a categorical matter, consideration of the factor."
Koon, 518 U.S. at 109.

   Application note 5 does not categorically proscribe lack of criminal
intent as a factor. The note is not written in absolute terms. It begins
by recognizing that "[a]ggravated felonies that trigger the adjustment
from subsection (b)(1)(A) vary widely." U.S.S.G. § 2L1.2, cmt. n.5
(2000). It then lists three criteria which, if present, may warrant a
downward departure "based on the seriousness of the aggravated fel-
ony." Id. Nowhere does the application note say that these criteria
provide the only basis for taking a case out of the heartland and
awarding a downward departure when the underlying crime is less
serious than the typical one covered by § 2L1.2(b)(1)(A). Because the
Commission has not categorically proscribed lack of criminal intent
as a factor that can be considered for taking a case outside of
§ 2L1.2’s heartland and departing, the majority is wrong to hold that
the district court could not consider that factor.

   Furthermore, the majority ignores the theory and structure of the
Guidelines when it contends that application note 5 implicitly defines
what lies inside the heartland of § 2L1.2(b)(1)(A) by listing criteria
that might take a case outside the heartland. The majority concludes
that the heartland of typical cases includes all cases not covered by
the three listed criteria and that only those cases satisfying the three
criteria are outside the heartland. To reach this conclusion, the major-
ity attributes to the Guidelines a comprehensiveness that they do not
claim for themselves. The Guidelines were written with the realiza-
tion that "[a] sentencing system tailored to fit every conceivable wrin-
kle of each case would quickly become unworkable." U.S.S.G. ch. 1,
pt. A, introductory cmt. 3 (2000). Thus, the Commission never
intended that the Guidelines would exhaustively consider every factor
that might take a case outside the heartland. The reason is simple: "it
is difficult to prescribe a single set of guidelines that encompass the
vast range of human conduct potentially relevant to a sentencing deci-
sion." U.S.S.G. ch. 1, pt. A, introductory cmt. 4(b) (2000). In other
words, factors that might take a case outside the heartland and allow
departure "cannot, by their very nature, be comprehensively listed and
                     UNITED STATES v. ALEJO-ALEJO                      13
analyzed in advance." U.S.S.G. § 5K2.0 (2000). See also U.S.S.G. ch.
1, pt. A, introductory cmt. 3 (stating that "the list of possible permuta-
tions of factors is virtually endless."). The Sentencing Commission
gives district courts discretion to depart under § 5K2.0 precisely
because it is impossible for the Guidelines to account for every poten-
tial factor in advance. Consequently, the decision about whether a
particular factor takes a case outside the heartland and warrants depar-
ture "rests with the sentencing court on a case-specific basis."
U.S.S.G. § 5K2.0. This decision is due substantial deference for it
"embodies the traditional exercise of discretion by a sentencing
court." Koon, 518 U.S. at 98. The deference principle is basic because
"[d]istrict courts have an institutional advantage over appellate courts
in making [the] determinations [relevant to departure], especially as
they see so many more Guidelines cases than [we] do." Id. Indeed, the
Supreme Court has warned us that "[t]o ignore the district court’s spe-
cial competence — about the ‘ordinariness’ or ‘unusualness’ of a par-
ticular case — would risk depriving the Sentencing Commission of
an important source of information, namely, the reactions of the trial
judge to the fact-specific circumstances of the case." Id. at 98 (inter-
nal quotations and citations omitted).

   The district court found that when the Sentencing Commission for-
mulated Guidelines § 2L1.2(b)(1)(A), the Commission did not con-
sider that the prescribed sixteen-level aggravated felony enhancement
might apply to a crime that lacked the intent element. The structure
of the guideline supports the district court’s finding. When Alejo-
Alejo was sentenced, the guideline simply said that if a defendant
convicted of illegal reentry "previously was deported after a criminal
conviction . . . for an aggravated felony, increase by 16 levels."
U.S.S.G. § 2L1.2(b)(1)(A) (2000). The Commission, quite under-
standably, did not provide a list of aggravated felonies that would
trigger the enhancement. Rather, it incorporated the definition of
aggravated felony appearing in the Immigration and Nationality Act,
8 U.S.C. § 1101(a)(43). The definition of aggravated felony consists
of twenty-one paragraphs listing dozens of specific crimes (for exam-
ple, murder and rape) and general classes of crimes (for example, a
crime of violence as defined in 18 U.S.C. § 16 that carries a prison
term of at least one year). A crime described in the definition is cov-
ered whether it violates federal or state law or the law of a foreign
country. 8 U.S.C. § 1101(a)(43). The universe of aggravated felonies
14                  UNITED STATES v. ALEJO-ALEJO
covered by the definition, and hence the guideline, is virtually end-
less. It is thus a fair inference that the Commission did not consider
— indeed, it could not have considered — all of the factors, such as
lack of intent, that might take a case outside the heartland of aggra-
vated felonies.

   The Commission has acknowledged, in substantially amending
Guidelines § 2L1.2, that it had not fully considered the wide varia-
tions in the seriousness of crimes swept in by use of the aggravated
felony definition. See U.S.S.G. app. C., amd. 632 (2001). The Com-
mission recognized that the pre-amendment version of
§ 2L1.2(b)(1)(A) (the version that applies to Alejo-Alejo) "sometimes
result[ed] in disproportionate penalties because of the 16-level
enhancement provided in the guideline for a prior conviction for an
aggravated felony. The disproportionate penalties result[ed] because
[of] the breadth of the definition of ‘aggravated felony.’" Id. The
Commission noted that sentencing courts had addressed the inequity
built into the guideline "by increased use of departures." Id. The new
guideline adopts a more graduated approach, so that now only the
most serious felonies merit a sixteen-level enhancement, other felo-
nies merit twelve or eight additional levels (depending on their sever-
ity), and misdemeanors (three are required) involving violence or
drug trafficking merit only four. U.S.S.G. § 2L1.2 (2001). The
amendments to § 2L1.2 deleted application note 5 entirely. The
amendments and the stated reasons for them confirm that the Com-
mission had not considered all of the factors that would make an
aggravated felony unusual and take it out of the heartland.

   The majority claims that allowing a district court to place an aggra-
vated felony committed without criminal intent outside the heartland
"ignores the goals of regularity and uniformity in sentencing that the
Guidelines were designed to promote." Ante at 6-7. But the majority
pushes uniformity at the expense of an equally important goal of the
guidelines: "proportionality in sentencing through a system that
imposes appropriately different sentences for criminal conduct of dif-
fering severity." U.S.S.G. ch. 1, pt. A, introductory cmt. 3 (2000).
Proportionality is to be achieved in part through § 5K2.0 departures
taken in atypical cases that fall outside the heartland. Indeed, without
the discretion that § 5K2.0 accords district courts to depart, there
would be no way to avoid a certain number of disproportionate sen-
                     UNITED STATES v. ALEJO-ALEJO                     15
tences that a literal application of the Guidelines to every case would
make inevitable — inevitable because, as discussed above, the Guide-
lines do not anticipate every possible factor that might take a case out-
side the heartland of the typical cases covered. The Supreme Court
put it this way: "Acknowledging the wisdom, even the necessity, of
sentencing procedures that take into account individual circum-
stances, Congress allows district courts to depart from the applicable
Guideline range" in the unusual case. Koon, 518 U.S. at 92 (internal
citation omitted). Because § 5K2.0 departures only occur in unusual
circumstances, these departures do not weaken the goal of "reason-
able uniformity." U.S.S.G. ch. 1, pt. A, introductory cmt. 3 (2000)
(emphasis added). As the district court in this case observed, an
aggravated felony that does not have a criminal intent element is "a
unique situation." Thus, when the district court placed such an aggra-
vated felony — the crime of misdemeanor death by vehicle — outside
the heartland of aggravated felonies, it furthered the goal of propor-
tionality in sentencing, and it did nothing to violate the goal of rea-
sonable uniformity.

   The majority also says that application note 5 is meaningless if
cases not meeting the three criteria can be placed outside the heart-
land. I disagree. Application note 5 recognizes that aggravated felo-
nies vary widely in their degree of seriousness, and it provides a non-
exclusive set of circumstances when a downward departure for seri-
ousness of the underlying crime should be considered. That offers
meaningful guidance to sentencing courts.

   In sum, application note 5 does not preclude consideration of lack
of criminal intent as a factor that might take a case out of the heart-
land of § 2L1.2(b)(1)(A). Lack of criminal intent is not one of the few
expressly forbidden factors listed in the Guidelines. And § 2L1.2 and
application note 5 were not an effort by the Commission to consider
and catalog every possible factor as inside or outside the heartland.
This is confirmed by circumstances and history, which reveal that the
Commission, in formulating U.S.S.G. § 2L1.2 (2000), did not take
into account that the aggravated felony definition might cover some
offenses that lack the element of criminal intent. As a result, the dis-
trict court had the authority to consider whether the lack of intent fac-
tor was sufficient to take Alejo-Alejo’s case out of the heartland of
cases covered by § 2L1.2(b)(1)(A).
16                   UNITED STATES v. ALEJO-ALEJO
                                    B.

   The next question is whether the district court was warranted in
concluding that the lack of criminal intent took Alejo-Alejo’s case
outside the heartland of typical cases. In approaching this question, a
sentencing court must figure out how the Guidelines have classified
the potential departure factor. Specifically, is it a factor that is a for-
bidden, encouraged, discouraged, or unmentioned basis for departure?
United States v. Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). As dis-
cussed in part I, lack of criminal intent is not one of the few factors
expressly forbidden by the Guidelines. See Koon, 518 U.S. 93-94.
Because lack of criminal intent is not mentioned at all, it is properly
classified as an unmentioned factor. Whether an unmentioned factor
is a proper basis for departure is bound up in the question of whether
the factor is sufficient to take a case outside the heartland: a departure
for an unmentioned factor is appropriate when the "structure and the-
ory of both relevant individual guidelines and the Guidelines taken as
a whole" indicate that a case is outside the heartland and that a depar-
ture is justified. Koon, 518 U.S. at 96 (citation omitted). Again, in
deciding whether to depart, the district court is "informed by its van-
tage point and [its] day-to-day experience in criminal sentencing." Id.
at 98.

   The district court found that the facts and circumstances surround-
ing Alejo-Alejo’s underlying aggravated felony were sufficiently
atypical and exceptional to take it outside the heartland of aggravated
felonies, a heartland that includes treason, murder, rape, sexual abuse
of a minor, racketeering, arms trafficking, and drug trafficking. While
Alejo-Alejo was driving his truck on a North Carolina highway on
October 1, 1993, he unintentionally caused an accident that resulted
in a death. As Alejo-Alejo attempted to pass a vehicle in front of him,
he unintentionally struck a third vehicle that was also attempting to
pass. The third vehicle flipped over, and its driver was killed. Alejo-
Alejo was convicted of misdemeanor death by vehicle in violation of
N.C.G.S. § 20-141.4(a)(2) (1993), for which he received a two-year
sentence. (Under 8 U.S.C. § 1101(a)(43)(F), aggravated felonies
include crimes of violence carrying a sentence of at least one year.)
The district court here, drawing on its broad experience, recognized
that Alejo-Alejo’s crime, unlike every other aggravated felony it was
aware of, lacked criminal intent. The district court determined that the
                     UNITED STATES v. ALEJO-ALEJO                       17
lack of intent placed Alejo-Alejo’s underlying crime outside the
heartland of typical aggravated felonies, and the court departed down-
ward by eight levels. This is a decision that "embodies the traditional
exercise of discretion by a sentencing court." Koon, 518 U.S. at 98.*

   Two points that the district court did not consider confirm that it
had ample room to depart. First, two circuits hold that offenses like
Alejo-Alejo’s underlying offense, misdemeanor death by vehicle, are
not aggravated felonies at all. Accordingly, in those circuits Alejo-
Alejo’s crime would not trigger the sixteen-level enhancement under
Guidelines § 2L1.2(b)(1)(A). Specifically, in United States v.
Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001), the Ninth Circuit
concluded that the California offense of injuring a person while driv-
ing under the influence is not a crime of violence and therefore not
an aggravated felony for purposes of § 2L1.2(b)(1)(A). The court rea-
soned that "a defendant cannot commit a ‘crime of violence’ if he
negligently — rather than intentionally or recklessly — hits someone
or something with a physical object." Id. at 1145. In Bazan-Reyes v.
INS, 256 F.3d 600, 611 (7th Cir. 2001), a deportation case, the Sev-
enth Circuit held that Wisconsin’s homicide by intoxicated use of a
motor vehicle was not a crime of violence because it did not require
the intent to use physical force against another’s person or property.
When at least two circuits hold that an offense that does not include
criminal intent (or at least recklessness) as an element is not an aggra-
vated felony at all, it cannot be an abuse of discretion to conclude that
such an offense is outside the heartland of typical aggravated felonies.
Second, North Carolina has reduced the prison term for misdemeanor
death by vehicle to the point that the crime no longer counts as an
aggravated felony under 8 U.S.C. § 1101(a)(43)(F). When Alejo-
Alejo committed the crime of misdemeanor death by vehicle in Octo-
ber 1993, it was punishable by a prison term of up to two years.
N.C.G.S. § 20-141.4(b) (1993). Today, this crime carries a maximum

   *The departure in Alejo-Alejo’s case is appropriate even if § 2L1.2’s
application note 5 is read as discouraging departure for an offense’s lack
of seriousness unless the note’s three elements are present. If a factor is
discouraged, the court may depart "if the factor is present to an excep-
tional degree or in some other way makes the case different from the
ordinary case." Koon, 518 U.S. at 96. The district court’s rationale for
departing also satisfies this standard.
18                   UNITED STATES v. ALEJO-ALEJO
prison sentence of 125 days and thus does not meet the maximum
one-year sentence requirement for an aggravated felony. N.C.G.S.
§ 20-141.4 (2001); N.C.G.S. § 15A0-1340.23 (2001); 8 U.S.C.
§ 1101(a)(43)(F). The North Carolina General Assembly’s eventual
action to reduce substantially the penalty for misdemeanor death by
vehicle supports the district court’s determination that this crime was
outside the heartland of aggravated felonies when Alejo-Alejo com-
mitted it in 1993.

   Because Alejo-Alejo’s underlying crime (misdemeanor death by
vehicle) lacks criminal intent, it is not like the usual crime covered by
the aggravated felony definition. As a result, the district court did not
abuse its discretion when it concluded that Alejo-Alejo’s aggravated
felony was atypical and that a downward departure of eight levels was
warranted. To let stand a sixteen-level enhancement based on an
offense that lies outside the heartland of aggravated felonies "would
be unduly harsh and contrary to the intent of the Sentencing Commis-
sion." United States v. Diaz-Diaz, 135 F.3d 572, 580 (8th Cir. 1998)
(affirming district court’s downward departure because defendant’s
"underlying conviction does not reflect the kind of grave offense that
warrants" a sixteen-level enhancement under § 2L1.2). See also
United States v. Sanchez-Rodriguez, 161 F.3d 556, 561 (9th Cir.
1998) (en banc) (affirming district court’s downward departure
because defendant’s underlying aggravated felony "was not compara-
ble to, and not proportional to, the typical crimes of defendants who
receive the 16-level enhancement" under § 2L1.2).

                                   II.

   Congress, in approving the structure for the Guidelines system,
expressed the "intent that district courts retain much of their tradi-
tional sentencing discretion." Koon, 518 U.S. at 97. The majority’s
decision chips away at this discretion. The decision does not allow a
district court to consider lack of intent as a factor that might take a
case outside of the heartland of aggravated felonies. The majority thus
"ignore[s] the district court’s special competence" to determine
whether the specific circumstances of a case make it unusual. Koon,
518 U.S. at 98 (citation omitted). I believe the district court properly
carried out its assigned role in the sentencing scheme when it
departed downward after finding that the unusual circumstances in
                   UNITED STATES v. ALEJO-ALEJO                   19
Alejo-Alejo’s case place it outside the heartland of cases warranting
a sixteen-level increase. The downward departure is entirely consis-
tent with the Guidelines’ primary goals of reasonable uniformity and
proportionality in sentencing. Because I would affirm the departure,
I respectfully dissent.
