                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 97-1287
           ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         *
      v.                                 *
                                         *
Fernando Diaz-Diaz,                      *
                                         *
             Appellant.                  *

           ___________
                                              Appeals from the United States
           No. 97-1491                        District Court for the
           ___________                        District of Minnesota.

United States of America,               *
                                        *
             Appellant,                 *
                                        *
      v.                                *
                                        *
Fernando Diaz-Diaz,                     *
                                        *
             Appellee.                  *
                                   ___________

                            Submitted: October 24, 1997

                                Filed: February 2, 1998
                                    ___________
Before FAGG, WOLLMAN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Fernando Diaz-Diaz appeals from the judgment of conviction entered by the
district court1 following a jury verdict finding Diaz-Diaz guilty of the offense of
unlawful reentry of a deported alien, a violation of 8 U.S.C. § 1326. The United States
cross-appeals from the sentence imposed by the district court. We affirm.

                                           I.

      Fernando Diaz-Diaz is a citizen of the Republic of Mexico who has made
repeated efforts to reside in the United States illegally. In 1982, Diaz-Diaz was first
discovered in the United States and was ordered to depart voluntarily. On October 22,
1992, Diaz-Diaz was deported to Mexico from El Paso, Texas. In August of 1993, he
was again voluntarily returned to Mexico. In October of 1995, he was deported once
more, this time from Laredo, Texas.

       During his periods of illegal residency in the United States, Diaz-Diaz
accumulated a substantial criminal history. In 1978, Diaz-Diaz was convicted of
resisting a peace officer in River Forest, Illinois. In 1985, he was convicted of
possession of a stolen motor vehicle in Arlington Heights, Illinois, and was
subsequently sentenced for violations of his probation in connection with that incident.
In 1990, Diaz-Diaz was arrested in Indianapolis, Indiana, and charged with rape,
criminal confinement, and battery for an incident in which he dragged a woman into an
abandoned house and forced her to have sexual intercourse with him. A plea
agreement resulted in his conviction for sexual battery.


      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.

                                          -2-
       By 1992, Diaz-Diaz was residing in Minnesota, where his criminal activities
continued. In June of that year, Diaz-Diaz was convicted of theft. In March of 1994,
he was convicted of consuming alcohol in a public place. In July of 1995, Diaz-Diaz
sold 8.3 grams of marijuana to an undercover police officer. During his arrest, Diaz-
Diaz informed police that he had a pound of marijuana at home and assured them that
he would be out selling the drug again within a few hours. Eventually, he was
convicted of the sale of a controlled substance. Finally, in February of 1996, police
were called to a residence in Minneapolis to investigate a murder. Witnesses reported
that Diaz-Diaz had stabbed the victim in the abdomen. The police officers found Diaz-
Diaz unconscious and slumped in a chair in the basement. One of his hands was
stained with blood, and blood was splattered on the chair, walls, and floor. Diaz-Diaz
was arrested and charged with second degree murder. The charges were dismissed,
however, after prosecutors learned that the witnesses had been deported and could not
be located.

        Soon after, in July of 1996, Diaz-Diaz was indicted in district court on one count
of illegal reentry in violation of 8 U.S.C. § 1326. Specifically, the indictment charged
Diaz-Diaz as follows:

                                        Count I

      On or about June 11, 1996, in the State and District of Minnesota, the
      defendant, Fernando Diaz-Diaz, an alien who had previously been
      arrested and deported two times from the United States pursuant to law,
      knowingly and unlawfully entered the United States, having not obtained
      the consent of the Attorney General of the United States for reapplication,
      in violation of 8 U.S.C. 1326.

United States v. Fernando Diaz-Diaz, No. 3-96-87, Indictment (D. Minn. filed July 17,
1996).


                                           -3-
       Prior to trial, Diaz-Diaz proposed a jury instruction regarding venue that would
have informed the jury that the government must prove by a preponderance of the
evidence that the offense charged “was begun, continued, or completed” in the district
of Minnesota. This instruction was rejected. At the close of the government’s case,
Diaz-Diaz moved for a judgment of acquittal, contending that the government had not
established venue. This motion was denied. After the jury returned a guilty verdict,
Diaz-Diaz renewed his motion for a judgment of acquittal and filed, in the alternative,
a motion for a new trial, both of which the district court denied.

       With a total offense level of 24 and a category III criminal history, Diaz-Diaz
faced a range of imprisonment of 63 to 78 months under the applicable sentencing
guidelines. For reasons set forth later in this opinion, the district court sentenced Diaz-
Diaz to 10 months’ imprisonment, 3 years of supervised release, $50 special
assessment, and mandatory drug testing as set forth by 18 U.S.C. § 3608.

       Although Diaz-Diaz has completed his sentence and has been deported once
again, he appeals, challenging the sufficiency of the evidence and contending that the
district court erred in rejecting his proposed instruction on the issue of venue.

                                            II.

       Section 1326 of Title 8 makes it a crime for a previously deported alien to
reenter the United States without the permission of the Attorney General. See United
States v. Gomez, 38 F.3d 1031, 1033 (8th Cir. 1994).2 “This offense may be

      2
       Section 1326 of Title 8 provides in relevant part:

      Reentry of deported alien; criminal penalties for reentry of certain
      deported aliens

      (a) Subject to subsection (b) of this section, any alien who—

                                           -4-
committed in three distinct manners: a previously deported alien may violate section
1326 by, without the Attorney General’s permission, (1) entering, (2) attempting to
enter, or (3) being found in the United States.” Id. at 1033-34. Entry and attempted
entry generally occur when an illegal alien enters or attempts to enter through a
recognized port of entry. See id. In contrast, being found in the United States
typically, though not necessarily, involves a surreptitious entry by the alien and is a
continuing violation that is not complete until he is discovered by immigration
authorities. See id. at 1034-35; United States v. Ortiz-Villegas, 49 F.3d 1435, 1436
(9th Cir. 1995) (surreptitious entry not prerequisite to prosecution for being deported
alien found in United States); United States v. Gay, 7 F.3d 200, 202 (11th Cir. 1993)
(deported alien could be convicted of being “found in” United States regardless of
surreptitious entry).




        (1) has been arrested and deported, has been excluded and deported,
      or has departed the United States while an order of exclusion or
      deportation is outstanding, and thereafter

         (2) enters, attempts to enter, or is at any time found in, the United
      States, unless (A) prior to his reembarkation at a place outside the United
      States or his application for admission from foreign contiguous territory,
      the Attorney General has expressly consented to such alien’s reapplying
      for admission; or (B) with respect to an alien previously excluded and
      deported, unless such alien shall establish that he was not required to
      obtain such advance consent under this chapter or any prior Act,

      shall be fined under Title 18, or imprisoned not more than 2 years, or
      both.

Subsection (b) of section 1326 provides for sentence enhancements when an alien
reenters illegally following his deportation subsequent to a conviction for the
commission of certain criminal offenses.

                                         -5-
      Diaz-Diaz first challenges the sufficiency of the evidence. Because he was
discovered in Minnesota, rather than being apprehended at a recognized port of entry,
and because it is not known where or when he reentered the United States, Diaz-Diaz
contends that he can only be considered as having been “found in” the United States and
that he should have been so charged. Instead, the indictment alleged that Diaz-Diaz
“entered” the United States “on or about June 11, 1996, in the State and district of
Minnesota.” Diaz-Diaz thus argues that the government did not prove the elements of
the offense as charged in the indictment, proving only that he was apprehended in
Minnesota and not that he entered in Minnesota.

        Although we agree with Diaz-Diaz that the record contains no evidence that his
reentry into the United States occurred in Minnesota, we are also satisfied that the
indictment was sufficient to charge him with the offense of illegal reentry. An indictment
is sufficient if it: (1) contains the elements of the charged offense and fairly informs the
defendant of the charge against which he must defend; and (2) enables him to plead
double jeopardy as a bar to further prosecution. See United States v. Pemberton, 121
F.3d 1157, 1169 (8th Cir. 1997); United States v. Dolan, 120 F.3d 856, 864 (8th Cir.
1997); Fed. R. Crim. P. 7(c)(1). Unless an indictment is so defective that by no
reasonable construction can it be said to charge the offense for which the defendant was
convicted, it will be upheld. See Pemberton, 121 F.3d at 1169. When the issue is
whether an element of an offense has been omitted from an indictment, moreover, our
inquiry is whether the omission is one of substance or one of form only. See id.

      In Pemberton, we upheld the sufficiency of an indictment that neglected to allege
an agency relationship between the defendant and the Leech Lake Band of Chippewa
Indians, an element of the offense outlined in the statute under which the defendant was
charged.3 See id. In so doing, we stated that a citation in the indictment to the



      3
       18 U.S.C. § 666 (1988).
                                           -6-
applicable statute, while not in itself sufficient to supply an element of a charged offense
omitted by the grand jury, see United States v. Camp, 541 F.2d 737, 740 (8th Cir. 1976),
when considered in combination with the other allegations in the indictment as a whole,
was adequate under the circumstances to have charged the defendant with the offense
for which he was convicted. See Pemberton, 121 F.3d at 1169. See also United States
v. Forbes, 16 F.3d 1294, 1297 (1st Cir. 1994); United States v. Campos-Asencio, 822
F.2d 506, 508 (5th Cir. 1987).

       The nature of the difficulty here, as in Pemberton, is “one of form rather than
substance.” 121 F.3d at 1169. Although the indictment might well have stated that
Diaz-Diaz had been “found in” this country, we believe that as worded the indictment
was adequate to have placed Diaz-Diaz on notice of the specific crime with which he
had been charged. First, as in Pemberton, the indictment specifically referenced the
appropriate statute, 8 U.S.C. § 1326, which contains the “found in” language that is
missing from the charge. Second, the text of section 1326 was included within the
instructions provided to the jury. Instruction number fourteen, moreover, which
identified the essential elements to be proved, instructed the jury to determine not
whether Diaz-Diaz illegally “entered in Minnesota” or was “found,” but whether he had
“reentered the United States.”

       Similarly, the indictment stated that Diaz-Diaz “knowingly and unlawfully entered
the United States.” As the Eleventh Circuit has noted, the fact that an illegal entry is
“capable, in and of itself, of constituting a distinct criminal offense, does not preclude
it from being the predicate act to the crime of being illegally ‘found in’ the United States.
By definition, one must enter the United States, either legally or illegally, in order to be
found therein.” United States v. Castrillon-Gonzalez, 77 F.3d 403, 406 (11th Cir. 1996).
A reasonable reading of the indictment as a whole, including the statutory reference,
should have alerted Diaz-Diaz that he was accused of having unlawfully reentered the
United States and of having been found therein. Cf. Campos-Asencio, 822 F.2d at 508
(indictment charging illegal reentry after deportation

                                            -7-
sufficiently alleged element of lack of consent by Attorney General to reenter, where
indictment alleged that alien was in United States unlawfully and cited specific statute).

       Diaz-Diaz was sufficiently apprised “of the charges he would be required to
defend against,” allowing him “to effectively prepare for trial.” United States v.
Klaphake, 64 F.3d 435, 438 (8th Cir. 1995). Thus, the indictment was not “so defective
that by no reasonable construction can it be said to [have charged] the offense for which
the defendant was convicted.” Pemberton, 121 F.3d at 1169; see also United States v.
Davis, 103 F.3d 660, 675 (8th Cir. 1996), cert. denied, 117 S. Ct. 2424 (1997) (mere
variance between indictment and proof “which occurs when the charging terms are left
unaltered but the evidence offered at trial proves facts different from those alleged in the
indictment” does not require reversal of conviction unless variance results in actual
prejudice).

        Because the indictment was minimally adequate to charge Diaz-Diaz with having
been found in the United States in violation of the illegal reentry statute, his challenge
to the sufficiency of the evidence must fail. In reviewing a challenge to the sufficiency
of the evidence, we view the evidence in the light most favorable to the guilty verdict,
giving the government the benefit of all reasonable inferences from the evidence that
support the verdict. See Dolan, 120 F.3d at 868. We will uphold the verdict if there is
an interpretation of the evidence that would allow a reasonable jury to conclude guilt
beyond a reasonable doubt. See id.

      We have held that an alien is “found in” the United States when that alien is
“discovered in” the United States by immigration authorities. See Gomez, 38 F.3d at
1036. “Discovery” in this context consists of two elements: (1) the discovery of a
previously deported alien’s physical presence in the United States; and (2) the
ascertainment of the identity and status of the alien. See id.; United States v. Rivera-
Ventura, 72 F.3d 277, 282 (2d Cir. 1995). As Diaz-Diaz essentially concedes, the trial
record is replete with evidence that he was discovered in Minnesota by immigration

                                           -8-
authorities after his arrest in Minneapolis for second degree murder. His presence and
identity were clearly established. Moreover, the record demonstrates that Diaz-Diaz was
here without the permission of the Attorney General and had been deported on two prior
occasions. Because a reasonable jury could have concluded Diaz-Diaz was guilty of
illegal reentry beyond a reasonable doubt, his challenge to the sufficiency of the evidence
cannot succeed.

                                            III.

      Diaz-Diaz contends that the government failed to prove venue and that he was
prejudiced by the district court’s rejection of his proposed jury instruction on venue.
The government has the burden of proving correctness of venue by a preponderance of
the evidence. See United States v. Chandler, 66 F.3d 1460, 1470 (8th Cir. 1995).
Proper venue may be established by either direct or circumstantial evidence. See id.

        The district court relied on the general venue statute in Title 8 to rule that venue
was proper. Section 1329 of Title 8 prescribes the appropriate venue for section 1326
prosecutions: “Notwithstanding any other law, such prosecutions or suits may be
instituted at any place in the United States at which the violation may occur or at which
the person charged with a violation under 1325 or 1326 of this title may be
apprehended.” Id. (emphasis supplied). In dicta, the Supreme Court has characterized
section 1329 as authorizing the prosecution of illegal entry cases at the place of
apprehension. See United States v. Cores, 356 U.S. 405, 408 n.6 (1958).

       In response, Diaz-Diaz contends that the particularity of the indictment, which
charged him specifically with “entering” the United States in the district of Minnesota,
requires those specifics of venue alleged to be proved. He reminds us of the
constitutional requirement that the trial of all crimes “shall be held in the State where




                                           -9-
the said Crimes shall have been committed,”4 and of our holding that an illegal “entry”
under section 1326 of Title 8 is committed and “complete when the deported alien enters
or attempts to enter through a recognized INS port of entry.” Gomez, 38 F.3d at 1034.
As Diaz-Diaz’s counsel noted at oral argument, it is incongruous to assert that a statute
could effectively authorize the prosecution of a completed offense in a district in which
no part of that offense occurred, when the Constitution mandates otherwise.

       Because we have determined that Diaz-Diaz was sufficiently charged with having
been found in the United States in violation of section 1326, however, his challenge on
the venue issue is no longer material. “In contrast to entry and attempted entry, a ‘found
in’ violation is a continuing violation that is not complete until the alien is ‘discovered’
by immigration authorities.” Id. at 1034-35. The record establishes that Diaz-Diaz was
discovered in Minnesota in 1996. Thus, his prosecution in that district was proper. See,
e.g., United States v. Asibor, 109 F.3d 1023, 1037 (5th Cir.), cert. denied, 118 S. Ct.
254 (1997); United States v. Mancebo-Santiago, 886 F. Supp. 372, 374-75 (S.D.N.Y.
1995), aff’d, 112 F.3d 506 (2d Cir. 1996) (table). Moreover, since proof on the venue
issue was clear, the district court did not err in refusing Diaz-Diaz’s proposed
instruction. See United States v. Moeckly, 769 F.2d 453, 461 (8th Cir. 1985).


                                            IV.

       The government cross-appeals from the sentence imposed by the district court.
In response, Diaz-Diaz argues that the cross-appeal is moot since he has served his
entire sentence and has been deported.

      The Supreme Court has stated that an appeal by the government relating to the
merits of a deported alien’s conviction is justiciable:



      4
       U.S. CONST. art. III, § 2. See also U.S. CONST. amend. VI.

                                           -10-
      That respondents have been deported likewise does not remove the
      controversy involved. Following a reversal of the Court of Appeals, there
      would be a possibility that respondents could be extradited and imprisoned
      for their crimes, or if respondents manage to re-enter this country on their
      own they would be subject to arrest and imprisonment for these
      convictions.

United States v. Villamonte-Marquez, 462 U.S. 579, 581 n.2 (1983). Taking guidance
from the Court’s willingness in Villamonte-Marquez “to let speculative contingencies
prevent the mootness of a government criminal appeal,” the Ninth Circuit has held
justiciable an appeal from the sentence of an alien who had completed his sentence and
been deported. United States v. Valdez-Gonzalez, 957 F.2d 643, 647 (9th Cir. 1992).
In doing so, however, the court specifically reserved the question of mootness regarding
the reversal of a sentence for an alien who has served his sentence and exited the
country:

          We note, however, that in Villamonte, the Court’s reversal of the
          court of appeals simply led to reinstatement of the defendant’s
          conviction and sentence. [citation omitted]. In the present case,
          however, any decision other than one affirming the lower court
          would necessitate resentencing, and possibly preparation of a new
          sentence report. Whether such proceedings should or could be
          carried on during a defendant’s absence is a question not presently
          before us.

Id. at 647 n.1.

       Relying on the Ninth Circuit’s opinion, the Sixth Circuit has held that the
government’s appeal of a downward departure was not rendered moot by the
defendant’s completion of his sentence and subsequent deportation. See United States
v. Barajas-Nunez, 91 F.3d 826, 829 (6th Cir. 1996) (citing Valdez-Gonzalez, 957 F.2d
at 646-47) (vacating and remanding for resentencing). The Second Circuit has similarly

                                         -11-
held that a defendant’s deportation did not moot the government’s appeal of a downward
departure in sentencing, so long as resentencing occurred within the defendant’s
remaining period of supervised release. See United States v. Londono, 100 F.3d 236,
241-42 (2d Cir. 1996). We are mindful, as well, that we have previously ordered the
detention of an alien defendant beyond the service of his sentence pending appeal of that
sentence by the government. See United States v. Maul-Valverde, 10 F.3d 544, 547 n.2
(8th Cir. 1993).

      We agree with the Second, Sixth, and Ninth Circuits that Villemonte-Marquez
provides support for the proposition that the deportation of a defendant who has
completed his sentence does not automatically moot the government’s appeal of a
downward departure in sentencing. See Londono, 100 F.3d at 241-42; Barajas-Nunez,
91 F.3d at 829; Valdez-Gonzalez, 957 F.2d at 646-47. While we find it unlikely that the
government will seek to extradite him, the prospect that Diaz-Diaz might return to this
country on his own accord is not only possible, but, given his history, probable.

       The sentence imposed upon Diaz-Diaz included three years of supervised release,
a term which, notwithstanding his deportation to Mexico, is scheduled to expire in the
year 2000. See United States v. Akinyemi, 108 F.3d 777, 779 (7th Cir. 1997)
(deportation of defendant does not terminate sentence of supervised release); United
States v. Brown, 54 F.3d 234, 237-38 (5th Cir. 1995) (same). In fact, the terms of Diaz-
Diaz’s release, in addition to prohibiting him from reentering the United States illegally,
require him to report to the nearest United States Probation office within 72 hours should
he nevertheless elect to return. If Diaz-Diaz does illegally reenter the United States prior
to the expiration of his term of supervised release, and if he is apprehended or his
presence otherwise comes to the attention of the government, he would be subject to
incarceration or some alternative form of governmental supervision pursuant to the
conditions of his prior release from custody. See Barajas-Nunez, 91 F.3d at 829.
Because we do not believe such a prospect to be so speculative or remote


                                           -12-
that it should prohibit the exercise of jurisdiction, we hold that the government’s cross-
appeal from Diaz-Diaz’s sentence is not moot.5

                                           V.

       In the routine case, a conviction for illegal reentry carries a maximum penalty of
2 years of incarceration. See 8 U.S.C. § 1326(a). Congress has determined that such
a violation warrants a much more severe penalty when committed subsequent to
deportation following a criminal conviction. See Maul-Valverde, 10 F.3d at 545; United
States v. Amaya-Benitez, 69 F.3d 1243, 1246 (2d Cir. 1995). In such cases involving
an aggravated felony, Congress has authorized an enhanced term of imprisonment of up
to 20 years. See 8 U.S.C. § 1326(b)(2). The Sentencing Commission has implemented
Congress’s view of the heightened gravity of an illegal reentry subsequent to a criminal
conviction. See Maul-Valverde, 10 F.3d at 545; United States v. Abreu-Cabrera, 64
F.3d 67, 75 (2d Cir. 1995). Section 2L1.2(a) of the U.S. Sentencing Guidelines Manual
(U.S.S.G.) (1995) provides for a base offense level of 8 for an alien who unlawfully
enters or remains in the United States following his arrest and deportation in violation
of 8 U.S.C. § 1326. This base level is subject to




      5
        Like the Ninth Circuit, we limit our holding on the question of mootness to the
circumstances of this case. See Valdez-Gonzalez, 957 F.2d at 647 n.1. As a result of
our conclusion in Part V of this opinion that the district court did not commit an abuse
of discretion in granting a downward departure to Diaz-Diaz, his sentence is simply
affirmed. Whether an alien defendant who has completed his sentence and has been
deported may be resentenced in absentia by the district court, pursuant to a reversal of
his sentence on appeal, is a question we need not now address. Similarly, we note that
the question whether the government may appeal the sentence of a deported alien after
his term of supervised release has expired is an issue not presently before us.

                                          -13-
a 16-level enhancement when the deportation of a defendant alien occurred subsequent
to his conviction for an aggravated felony. See U.S.S.G. § 2L1.2(b)(2) (1995).6

       Diaz-Diaz’s 1995 conviction in Hennepin County, Minnesota, for fifth degree sale
of a controlled substance meets the definition of an aggravated felony as contemplated
in the application notes to section 2L1.2. Thus, his pre-sentence report appropriately
recommended the 16-level enhancement, bringing Diaz-Diaz’s total offense level to 24.
Using a category III criminal history, the pre-sentence report then calculated a
sentencing range of 63 to 78 months, and recommended a prison term of 63 months.

      In granting Diaz-Diaz a downward departure, the district court stated:

      First, the defendant argues that the sixteen point increase in his base
      offense level for a prior “aggravated felony” drastically overstates the
      seriousness of the conduct underlying his state court conviction for fifth
      degree sale of a controlled substance (marijuana) -- the felony upon which
      the increase is based. See U.S.S.G. § 2L1.2(b)(1). The file reflects that in
      1995 defendant was convicted of selling 8.3 grams of marijuana to an
      undercover police officer and sentenced to 22 days confinement, or time
      served, at the Hennepin County Workhouse. Defendant argues that
      increasing his total offense level by sixteen points based on this relatively
      benign conviction would be unduly harsh and inappropriate. We agree. .
      . . .

      While defendant’s state court felony conviction technically falls within the
      Guideline’s definition of an “aggravated felony,” his underlying



      6
       Section 2L1.2 of the Guidelines has been revised by an amendment effective
November 1, 1997. However, both under the version of section 2L1.2 in effect at the
time of Diaz-Diaz’s sentencing and under the recently revised version, a defendant
previously deported subsequent to a conviction for an aggravated felony is subject to
a 16-level sentence enhancement.

                                         -14-
conviction does not reflect the kind of grave offense that warrants such a heightened
sentence. Given the minuscule amount of marijuana involved and the nominal sentence
imposed, the Court concludes that a sixteen point increase in defendant’s total offense
level would be unduly harsh and contrary to the intent of the Sentencing Commission.

Statement of Reasons for Imposing Sentence at 2-3. Disregarding Diaz-Diaz’s felony
drug trafficking conviction, the district court employed a total offense level of 8 and a
category II criminal history. The court then calculated a sentencing range of 4 to 10
months, and sentenced Diaz-Diaz to a 10-month term of imprisonment.

       A district court is authorized to depart from the applicable Guidelines range when
“the court finds that there exists an aggravating or mitigating circumstance of a kind, or
to a degree, not adequately taken into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence different from that described.”
18 U.S.C. § 3553(b); see also United States v. Hernandez-Reyes, 114 F.3d 800, 801 (8th
Cir. 1997). The Sentencing Commission’s policy statement regarding departures
approves of their use when factors exist in a particular case “that have not been given
adequate consideration by the Commission,” or when, “in light of unusual circumstances,
the guideline level attached to that factor is inadequate.” U.S.S.G. § 5K2.0. “In the
absence of a characteristic or circumstance that distinguishes a case as sufficiently
atypical to warrant a sentence different from that called for under the guidelines, a
sentence outside the guideline range is not authorized.” Id. at cmt; see also United
States v. Wind, 128 F.3d 1276, 1277 (8th Cir. 1997). In particular, “dissatisfaction with
the available sentencing range or a preference for a different sentence than that
authorized by the guidelines is not an appropriate basis for a sentence outside the
applicable guideline range.” U.S.S.G. § 5K2.0 at cmt.




                                          -15-
       The Sentencing Commission “forbids consideration of a few grounds for
departure, discourages or encourages use of some specific grounds, and does not
mention others.” United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir. 1997) (citing
Koon v. United States, 116 S. Ct. 2035, 2044 (1996)). If use of a certain factor is
discouraged, or encouraged but already taken into account in the applicable guideline,
departure is permissible only if the factor is present to an exceptional degree or
distinguishes the case in some other manner from the typical case in which the factor is
present. See id. If a factor is unmentioned, departure on that basis is permissible only
when the circumstances of the case are atypical in view of the structure and theory of the
Guidelines. See id. “The court must bear in mind the Commission’s expectation that
departures based on grounds not mentioned in the Guidelines will be ‘highly
infrequent.’” Koon, 116 S. Ct. at 2045 (citing 1995 U.S.S.G. ch. 1, pt. A); see also
United States v. Drew, No. 97-2528WM, 1997 WL 781216 at *1 (8th Cir. Dec. 22,
1997).

       Sentencing departure decisions are to be reviewed under a “unitary abuse-of-
discretion” standard. Koon, 116 S. Ct. at 2048. Under such a standard, questions of law
such as “whether a factor is a permissible basis for departure under any circumstances”
are reviewed de novo. United States v. Kalb, 105 F.3d 426, 428 (8th Cir. 1997).
However, a district court’s decision to depart from the Guidelines “will in most cases
be due substantial deference.” Koon, 116 S. Ct. at 2046-48; see also Kalb, 105 F.3d at
428; Kapitzke, 130 F.3d at 822.

       Under the version of section 2L1.2 applicable when Diaz-Diaz was sentenced, the
presence of a prior deportation subsequent to an aggravated felony conviction
automatically triggered a mandatory 16-level enhancement. See United States v.
Polanco, 29 F.3d 35, 38 (2d Cir. 1994). Several circuits, in fact, have explicitly held that
a departure from this sentence enhancement based upon a perceived disparity between
a 16-level enhancement and the seriousness of the underlying offense is impermissible
as a matter of law. See United States v. Rios-Favela, 118 F.3d 653, 658

                                           -16-
(9th Cir. 1997); United States v. Reyna-Espinosa, 117 F.3d 826, 830 (5th Cir. 1997);
Amaya-Benetiz, 69 F.3d at 1247-49; Polanco, 29 F.3d at 38; Abreu-Cabrera, 64 F.3d
at 74-76.

       On November 1, 1997, however, an amended version of section 2L1.2 became
effective. See U.S.S.G. Appendix C, amendment 562 at p. 411-13 (November 1, 1997).
The amended application notes to section 2L1.2 include the following provision:

      Aggravated felonies that trigger the adjustment from subsection (b)(1)(A)
      [the amended aggravated felony enhancement] 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.

U.S.S.G. § 2L1.2 cmt. (n.5) (1997). In the absence of any ex post facto concerns, the
Sentencing Guidelines in effect at the time of sentencing will generally control. See
United States v. Strange, 102 F.3d 356, 362 (8th Cir. 1996); United States v. Russell,
913 F.2d 1288, 1291 (8th Cir. 1990); 18 U.S.C. § 3553(a)(4) & (b); U.S.S.G. §
1B1.11(a) & (b)(1). “However, if a court applies an earlier edition of the Guidelines
Manual, the court shall consider subsequent amendments, to the extent that such
amendments are clarifying rather than substantive changes.” U.S.S.G. § 1B1.11(b)(2).
See also United States v. Downs, 123 F.3d 637, 643 (7th Cir. 1997).

       The commentary to Amendment 562 describes the amendment as making
“clarifying changes to the commentary.” U.S.S.G. Appendix C, amendment 562 at p.
413. Although one might disagree with this assessment,




                                        -17-
      our role is not to declare as an original matter whether [an amendment]
      works a substantive or a clarifying change to the law in this circuit; our role
      is merely to decide whether the Commission’s statement that [the
      amendment] can be considered for retroactive use is plainly at odds with
      the Guidelines.

United States v. Douglas, 64 F.3d 450, 452 (8th Cir. 1995) (relying on Stinson v. United
States, 508 U.S. 36, 45-46 (1993) (Guidelines amendments to be taken at face value
unless plainly erroneous or inconsistent with Guidelines provision they explain or
amend)). See also Braxton v. United States, 500 U.S. 344, 348 (1991) (Congress
contemplated unusually limited role for courts in deciding extent of Guidelines
amendment retroactivity); Russell, 913 F.2d at 1295 (McMillian, J., concurring in part
and dissenting in part) (Commission’s statement that amendment to Guidelines was
intended to be clarifying should be accorded substantial weight).

       Because we cannot say that the Commission’s determination that the changes to
the commentary implemented by Amendment 562 are merely clarifying is plainly at odds
with the Guidelines, we are obliged to apply the amendment retroactively in this case.
See Douglas, 64 F.3d at 452-53. Under the amended version of section 2L1.2, the
“seriousness of the aggravated felony” is an encouraged factor upon which a departure
may be based. U.S.S.G. § 2L1.2 cmt. (n.5) (1997).

       Although we believe Diaz-Diaz’s situation to involve precisely the sort of
circumstances that the section 2L1.2(b) felony enhancement provision was intended to
address,7 “we are dealing with a fact-based judgment call that falls within the district
court’s sentencing discretion, and we are not permitted to substitute our judgment for


      7
       See, e.g., Maul-Valverde, 10 F.3d at 547 (defendant’s pattern of entering the
United States illegally, being arrested for non-immigration offenses, returning to
Mexico, and then illegally reentering the country demonstrates that his offense is within
heartland of cases to which section 2L1.2(b) enhancement was intended to apply).

                                          -18-
that of the sentencing court.” Kapitzke, 130 F.3d at 824 (citing Koon, 116 S. Ct. at
2046). Thus, we conclude that the district court did not abuse its discretion in granting
a downward departure based upon the now-encouraged factor of the seriousness of Diaz-
Diaz’s underlying felony conviction.8

      The judgment is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      8
       The district court additionally stated that it considered the defendant’s medical
condition as HIV-positive to be an alternative basis for its downward departure.
Because we affirm the district court’s exercise of discretion in granting a departure
based upon the nature of Diaz-Diaz’s underlying felony conviction, we need not
address this reason for departure.

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