245 F.3d 20 (1st Cir. 2001)
UNITED STATES OF AMERICA, Appellee,v.JOSE DE JESUS DELGADO-REYES, Defendant, Appellant.
No. 99-2121
United States Court of Appeals  For the First Circuit
Submitted March 7, 2001Decided March 29, 2001

Joseph C. Laws, Jr., Federal Public Defender, and Anita  Hill-Adames, Assistant Federal Public Defender, on brief for  appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-Pacheco, Assistant United States Attorney, and Thomas F.  Klumper, Assistant United States Attorney, on brief for  appellee.
Before  Torruella, Chief Judge, Coffin, Senior Circuit Judge, and Selya, Circuit Judge.
COFFIN, Senior Circuit Judge.


1
This sentencing case  arises from the chart-like arrangement of the Sentencing  Guidelines table, which sets penalties for criminal conduct  based both on the nature of the current offense (the offense  level, plotted on the vertical axis) and on the number and  severity of the defendant's prior convictions (the criminal  history category, plotted on the horizontal axis).  The district  court concluded that a provision barring relief from an  enhancement to the base offense level (vertical departure) also  cabined its discretion to depart from the assigned criminal  history category (horizontal departure).  Because the Guidelines  treat these two calculations separately, we conclude that the  strictures of the offense level guideline do not apply to bar  horizontal departures.


2
The particular provisions at issue here are Guideline  4A1.3, which permits departures from the criminal history  category if that category "significantly over-represents the  seriousness" of the defendant's prior offenses, and application  note 5 of Guideline 2L1.2, which prohibits downward departures  from the offense level for illegal re-entry after deportation  for an aggravated felony unless a narrow set of conditions are  met.  These particular guidelines apply to different axes of the  sentencing calculus.  Application note 5 ofGuideline 2L1.2  restricts vertical departures; Guideline 4A1.3 relates to  horizontal departures.  The district court declined to consider  departing horizontally under Guideline 4A1.3 based on the  prohibition against a vertical departure under Guideline 2L1.2. As we explain below, this legal error requires that we remand  the case for re-sentencing.


3
When defendant-appellant pleaded guilty to illegal re-entry after deportation for a prior aggravated felony, the  government stipulated to calculating his sentence under criminal  history category (CHC) I because a higher category would be "overrepresentative" of his prior offenses.1  Invoking Guideline  4A1.3, the government also urged that position at sentencing. Under CHC I, appellant would have been sentenced within the  range of 37 to 46 months' imprisonment.  Notwithstanding the  parties' stipulation, the court sentenced appellant under the  range prescribed by CHC III to 46 months.  Coincidentally, the  46-month sentence falls at the top of the CHC I range and at the  bottom of the CHC III range.  But the court made it clear, and  the judgment reflects, that the sentence was imposed under the  CHC III range.


4
In disregarding the criminal history stipulation, the  court relied on Guideline 2L1.2, which governs the calculation  on the other axis, the offense level, for unlawful re-entry  sentences.  Under that provision, 16 levels are added to a  defendant's base offense level if the defendant's deportation  was predicated on a conviction for an aggravated felony.  See U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)  (1998).  Application note 5 of the guideline authorizes  departures from the 16-level increase if defendant meets three  conditions: (1) he has only one prior felony conviction; (2) it  was not for a crime of violence or firearms offense; and (3) the  term of imprisonment imposed did not exceed one year.  Id. §  2L1.2, cmt. n.5 (adopted 1997).  Here, appellant did not meet  the third condition because he had been sentenced to more than  a year for his aggravated felony conviction, a drug charge in  New York.  The court consequently declined to depart.


5
As both he and the government argued below, appellant  contends that the court had discretion to depart under Guideline  4A1.3, the Sentencing Commission's policy statement on  departures from the criminal history category, and that the  sentencing court erroneously imported the limitation on offense  level departures into the criminal history category setting.  In  other words, appellant asserts that these two guidelines govern  different types of departures: Guideline 2L1.2 controls the  court's discretion to depart vertically from the 16-level  enhancement to the offense level calculation, while Guideline  4A1.3 concerns horizontal departures for all offenses in which  the defendant's criminal history is either under- or, in this  case, over-represented.


6
We agree with appellant that the prerequisites of  application note 5 govern only the decision to depart on the  vertical axis of the table, i.e., from the 16-level aggravated  felony enhancement in calculating the offense level.  Nothing in  that note refers to the criminal history category; by its terms,  note 5 applies only to the offense level calculation under  Guideline 2L1.2.  We have previously recognized that the  aggravated felony enhancement of that guideline serves a  distinct punitive purpose (deterrence) apart from the concerns  about recidivism reflected in the criminal history category. See United States v. Zapata, 1 F.3d 46, 49 (1st Cir. 1993); accord United States v. Crawford, 18 F.3d 1173, 1179-80 (4th  Cir. 1994).  We find no support for extending the explicit,  limited reach of application note 5 to supersede another  provision that governs a different factor in the sentencing  calculation.


7
Application note 5 of Guideline 2L1.2, therefore, does  not limit a court's discretion to depart horizontally where the  prior record of an illegal re-entry defendant, just like any  other, is over-represented by the assigned criminal history  category.  Cf. United States v. Perez, 160 F.3d 87, 89 (1st Cir.  1998) (en banc) (recognizing that "departures for atypical  criminal history are specifically encouraged under U.S.S.G. §  4A1.3").  Thus, a defendant who is not qualified for a vertical  departure because he fails to satisfy the requisites of  application note 5 still may be entitled to a horizontal  departure if the district court finds that the assigned criminal  history category significantly over-represents the seriousness  of defendant's prior convictions.


8
The government neither quibbles with this reading of  the Guidelines, nor disavows its stipulation, but argues only  that we are without jurisdiction to adjudicate this appeal  because a sentencing court's discretionary refusal to depart is  ordinarily not reviewable.  See, e.g., United States v. Baltas,  236 F.3d 27, 39-40 (1st Cir. 2001) (holding that decisions not  to depart horizontally are unreviewable unless the sentencing  court committed legal error in making its determination).  The  well-established exception to this general rule, however,  empowers us if the sentencing court did not realize it could  depart.  E.g., United States v. Clase-Espinal, 115 F.3d 1054,  1056 n.2 (1st Cir. 1997) ("Although a refusal to depart is not  ordinarily appealable, the rule is otherwise if, as here, the  district court refused on the ground that it lacked the  authority to depart." (internal citation omitted)).  The  government contends that the court was aware of its discretion,  but refused to depart nonetheless.


9
The transcript of the sentencing hearing belies this  contention.  The Judge gave this rationale for not departing:


10
And this Court does not deem reasonable to depart in  this case because[,] although the note may be  interpreted as only applicable to the offense level  and not the Criminal History Category[,] this Court  deems that note number five of 2L1.2 is a warning to  the Court of downward departing only if those three  elements are present. . . . Hence, the Court cannot  depart and will not depart.


11
The court's statement that it could not, and thus would not,  depart reflects a view that it lacked authority.  Thus, we have  jurisdiction to review that misapplication of the Guidelines. See 18 U.S.C. § 3742(f)(1).2


12
The court imposed a sentence at the bottom of what it  thought was the applicable range under CHC III.  If the court  had realized it was authorized to depart, and had accepted the  government's stipulation that the CHC I range applied, as it  seemed inclined to do, it could have imposed a sentence of nine  fewer months.  The government has stood by its stipulation  throughout the plea and sentencing hearings and does not take a  contrary position in this appeal.  Given the court's apparent  refusal to depart based on an erroneous view of the law, we  remand for re-sentencing.  Of course, under both the plea  agreement and the Guidelines, the court retains the discretion  to depart, or not, on remand.  We express no opinion about the  merits of such a departure.  We merely hold that the court is  authorized to do so.


13
Sentence vacated and remanded for re-sentencing.



Notes:


1
  Appellant's record would have placed him into criminal  history category III absent the stipulation.


2
  "If the court of appeals determines that the sentence--(1) was imposed in violation of law or imposed as a result of  an incorrect application of the sentencing guidelines, the court  shall remand the case for further sentencing proceedings with  such instructions as the court considers appropriate."  18  U.S.C. § 3742(f)(1).


