In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3640

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ROBERTO PALOMINO-RIVERA,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 371--Suzanne B. Conlon, Judge.

ARGUED MARCH 28, 2001--DECIDED July 20, 2001


  Before RIPPLE, KANNE and EVANS, Circuit
Judges.

  RIPPLE, Circuit Judge. Roberto Palomino-
Rivera was indicted on one count of being
present in the United States without
authorization after having been deported
previously, in violation of 8 U.S.C. sec.
1326. He pleaded guilty. The Government
recommended that Mr. Palomino-Rivera
receive a sixteen-level increase in
offense level pursuant to United States
Sentencing Guideline sec. 2L1.2(b)(1)(A)
because he had been deported after being
convicted of an aggravated felony. Mr.
Palomino-Rivera filed a motion for a
downward departure on the ground that the
sixteen-level increase overstated the
seriousness of the underlying crime. The
district court agreed in part and granted
Mr. Palomino-Rivera an eight-level
downward departure. The Government now
appeals. It submits that the district
court erred when it granted the
departure. For the reasons set forth in
the following opinion, we reverse the
decision of the district court and remand
the case for resentencing.

I
BACKGROUND

  On May 9, 2000, Mr. Palomino-Rivera was
arrested at O’Hare International Airport
for theft and disorderly conduct. A
citizen of Peru, he was, at the time of
his arrest, in the United States
illegally. Local authorities therefore
turned him over to the Immigration and
Naturalization Service.

  On June 14, 2000, Mr. Palomino-Rivera
was indicted on one count of being
present in the United States without
authorization after having been deported
previously. Prior to the date of his
arrest, he had been deported twice and,
on another occasion, had been permitted
to return voluntarily to Peru./1 With
respect to the present offense, he
initially entered a plea of not guilty
and then withdrew it and pleaded guilty.

  Following Mr. Palomino-Rivera’s guilty
plea, the United States Probation Office
prepared a pre-sentence investigation
report ("PSR") recommending a Sentencing
Guidelines range of 46 to 57 months’
imprisonment. In calculating that
sentence, the PSR began with a base
offense level of eight for unlawful entry
into the United States, see U.S.S.G. sec.
2L1.2(a), and then applied a sixteen-
level enhancement, see U.S.S.G. sec.
2L1.2(b)(1)(A). This latter provision
authorizes such an augmentation for
defendants who previously have been
deported after a conviction for an
aggravated felony. According to the PSR,
Mr. Palomino-Rivera had been convicted of
an aggravated felony--theft by taking on
September 21, 1988--and had received a
three-year term of imprisonment. The PSR
further recommended a three-level
reduction for acceptance of
responsibility; it also assigned him a
Criminal History Category of III.

  On September 1, 2000, Mr. Palomino-
Rivera filed a motion for a downward
departure of ten levels. Relying on
Application Note 5 to U.S.S.G. sec.
2L1.2(b)(1)(A) and United States v. Cruz-
Guevara, 209 F.3d 644 (7th Cir. 2000), he
argued that he met the requirements of
Application Note 5 and that the sixteen-
point enhancement "overstate[d] the
seriousness of the underlying crime."
R.18 at 6.

  At the time of sentencing, Mr. Palomino-
Rivera again sought a ten-level departure
on the basis of Application Note 5. He
argued that the underlying felony--theft
by taking--was "barely" a felony and,
therefore, should not be treated the same
as other, more serious aggravated
felonies. Sent. Tr. at 14. The district
court agreed and granted the motion in
part, awarding Mr. Palomino-Rivera an
eight-level departure. In the court’s
view, the departure was warranted because
the felony used to enhance Mr. Palomino-
Rivera’s sentence was a "borderline
felony" not "adequately considered by the
Commission, whether or not application
note 5 applies." Id. at 27. Further, the
court saw no rational basis for "lumping
[theft by taking] together with treason,
murder and rape." Id.

  Taking into account the adjusted offense
level, the district court sentenced Mr.
Palomino-Rivera to a term of 24 months’
imprisonment, the high end of the 18-24
months authorized by the Guidelines. The
Government now appeals.

II

ANALYSIS

  We review a district court’s decision to
depart for an abuse of discretion. See
Koon v. United States, 518 U.S. 81, 99-
100 (1996). In doing so, we accept the
district court’s findings of fact
supporting the departure unless clearly
erroneous. See United States v. Gee, 226
F.3d 885, 900 (7th Cir. 2000). A district
court "by definition abuses its
discretion when it makes an error of
law." Koon, 518 U.S. at 100.

A.   Eight-Level Departure

  Under U.S.S.G. sec. 2L1.2, the sentence
of a defendant convicted of unlawfully
entering or remaining in the United
States can be increased if that defendant
(1) previously was deported after a
criminal conviction or (2) unlawfully re
mained in the United States following a
removal order. See U.S.S.G. sec.
2L1.2(b)(1). If the underlying conviction
was for an aggravated felony, the
increase is by sixteen levels. See
U.S.S.G. sec. 2L1.2(b)(1)(A). Application
Note 5, however, provides a mechanism
whereby a district court can mitigate the
severity of the sixteen-level increase in
certain cases. A downward departure may
be warranted, based on the seriousness of
the aggravated felony at issue, if "(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." U.S.S.G. sec.
2L1.2, Application Note 5./2

  The parties disagree about the degree of
discretion available to the sentencing
court when faced with the sort of
situation contemplated by Application
Note 5. In the Government’s view, a
defendant can only receive a departure if
all three conditions set forth in the
note are met. Mr. Palomino-Rivera,
however, argues that, even if he fails to
satisfy each of the criteria in the
application note, the district court
nevertheless had discretion under Koon v.
United States, 518 U.S. 81 (1996), to
grant a downward departure based on its
assessment of the seriousness of the
predicate aggravated felony. Nothing in
Note 5 forbids, he submits, an
individualized consideration of factors
such as the underlying facts of the prior
offense or actual time served.


1.

  A sentencing court may depart and
"impose a sentence outside the range
established by the applicable guidelines,
if 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.’"
U.S.S.G. sec. 5K2.0 (quoting 18 U.S.C.
sec. 3553(b)). Before such a departure is
permitted, however, "certain aspects of
the case must be found unusual enough for
it to fall outside the heartland of cases
in the Guideline." Koon, 518 U.S. at 98.
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."
U.S.S.G. sec. 5K2.0, commentary. Mr.
Palomino-Rivera submits that he presents
an atypical case that was not adequately
considered by the Sentencing Commission
("Commission"). The district court agreed
and, in granting the downward departure,
explained that it did not "think this
kind of a borderline felony was
adequately considered by the Commission."
Sent. Tr. at 27.

  We respectfully disagree with the
district court and conclude that the
Commission fully considered the issue.
There can be no question that the
Commission was aware that the blanket
sixteen-level enhancement may work a
disproportionately harsh sentence in
cases in which the aggravated felony is
relatively minor. Indeed, Application
Note 5 specifically states that
"[a]ggravated felonies that trigger the
[sixteen-level enhancement] vary widely."
Nevertheless, the Commission limited the
grounds of departure to the specific
circumstances detailed in the note. Under
these circumstances, we cannot say that a
departure tied to the severity of the
aggravated felony is a mitigating factor
not taken into consideration by the
Guidelines.

  A downward departure would only be
permissible if Mr. Palomino-Rivera’s case
fell outside the heartland of cases of
unlawful reentry subsequent to an
aggravated felony. See Koon, 518 U.S. at
98. In promulgating Application Note 5,
the Commission defined the heartland of
sec. 2L1.2 by exclusion; a downward
departure from the sixteen-point
enhancement is authorized only if the
defendant satisfies all three criteria
enumerated in Application Note 5. This
conclusion mirrors that reached by other
circuits on the identical issue. See
United States v. Marquez-Gallegos, 217
F.3d 1267, 1270-71 (10th Cir.), cert.
denied, 121 S. Ct. 246 (2000); United
States v. Yanez-Huerta, 207 F.3d 746, 750
(5th Cir.), cert. denied, 121 S. Ct. 432
(2000); United States v. Tappin, 205 F.3d
536, 540-41 (2d Cir.), cert. denied, 121
S. Ct. 260 (2000); see also United States
v. McKenzie, 193 F.3d 740, 742 (3d Cir.
1999)./3

  We find persuasive the reasoning of our
colleagues in the Second Circuit in
Tappin:

The Sentencing Commission stated
explicitly that departure on the ground
of seriousness of the predicate
aggravated felony may be appropriate when
a defendant meets all three enumerated
criteria in [Application Note 5]. By
necessary implication, therefore, the
Sentencing Commission intended that all
other cases . . . should be treated as
within the heartland of illegal reentry
cases under sec. 2L1.2(b)(1)(A), and that
downward departure in such cases on the
ground of seriousness of the predicate
aggravated felony would be improper.

Tappin, 205 F.3d at 540-41. Any other
interpretation would render the
application note "effectively
meaningless." Id. at 541. We shall not
"second-guess the conscious policy
choices of Congress and the Sentencing
Commission, an activity in which we are
not at liberty to engage." Marquez-
Gallegos, 217 F.3d at 1271.

  In sum, the Commission did take into
account the varying severities of
aggravated felonies when it promulgated
Application Note 5. A defendant whose
record does not satisfy all three
criteria enumerated in the note therefore
cannot be considered atypical and
consequently outside the heartland of
illegal reentry cases.

2.

  We now turn to the specific facts of Mr.
Palomino-Rivera’s case. According to the
Government, Mr. Palomino-Rivera does not
satisfy two of the three criteria set
forth in Application Note 5; he has at
least four prior felony convictions, and
he received a prison term of three years
on a theft by taking conviction in 1988
in Georgia. Mr. Palomino-Rivera argues
(1) that the district court only found
that he committed one prior aggravated
felony, theft by taking and (2) it is
questionable whether that offense itself
constitutes an aggravated felony./4

  If Mr. Palomino-Rivera has been
convicted of more than one aggravated
felony, or if he did receive a prison
term of more than a year for a single
felony, he is ineligible for a downward
departure pursuant to Application Note
5./5 Upon examination of the record,
however, we note that, although the
district court assumed that Mr. Palomino-
Rivera had been convicted of at least one
aggravated felony, it never made an
explicit finding to that effect. A
sentencing court "must clearly explain
the reasons for the departure and make
any necessary factual findings as
required by the guidelines." United
States v. Eiselt, 988 F.2d 677, 680 (7th
Cir. 1993). Because the record is
deficient in this regard, on remand, the
district court must (1) make the required
factual findings on the record and (2)
resentence Mr. Palomino-Rivera in
accordance with this opinion.

B.   Apprendi

  Mr. Palomino-Rivera provides an
alternative basis for affirming the
district court’s sentence. He claims that
the two-year sentence he received is the
maximum sentence available, under the
rule announced in Apprendi v. New Jersey,
530 U.S. 466 (2000). This argument is
without merit.

  In general, aliens who return to the
United States after deportation and
without permission are subject to two
years’ incarceration. See 8 U.S.C. sec.
1326(a). An increased prison term of up
to twenty years also can be imposed for
aliens "whose [prior] removal was
subsequent to a conviction for commission
of an aggravated felony." 8 U.S.C. sec.
1326(b)(2). Mr. Palomino-Rivera argues
that he cannot receive a sentence of more
than two years because the indictment did
not charge, and the factfinder did not
find beyond a reasonable doubt, that he
previously had been convicted of an
aggravated felony.

  As the Government points out, Mr.
Palomino-Rivera’s position conflicts with
the holding of Almendarez-Torres v.
United States, 523 U.S. 224 (1998). The
Supreme Court specifically addressed in
Almendarez-Torres whether the provisions
of sec. 1326(b)(2) set forth a sentencing
factor or a separate element of a sec.
1326 charge. The Court concluded that
sec. 1326(b)(2) is a "penalty provision,
which simply authorizes a court to
increase the sentence for a recidivist.
It does not define a separate crime.
Consequently, neither the statute nor the
Constitution requires the Government to
charge the factor that [Section
1326(b)(2)] mentions, an earlier
conviction, in the indictment." Id. at
226-27. This decision, therefore,
forecloses Mr. Palomino-Rivera’s position
here.

  Although Mr. Palomino-Rivera maintains
that the Supreme Court’s decision in
Apprendi has undermined the reasoning of
Almendarez-Torres, we note that Apprendi
explicitly states that "[o]ther than the
fact of a prior conviction, any fact that
increases the penalty for a crime beyond
the prescribed statutory maximum must be
submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. Thus,
Apprendi left the rule of Almendarez-
Torres intact.

Conclusion

  There is no Apprendi violation in this
case. The district court did, however,
misapprehend its authority to award Mr.
Palomino-Rivera an eight-level departure
if he did not meet all the criteria of
Application Note 5. Accordingly, the
judgment of the district court is
reversed, and the case is remanded for
further factfinding and resentencing in
conformity with this opinion.

REVERSED and REMANDED

FOOTNOTES

/1 On December 23, 1992, in New Orleans, Louisiana,
Mr. Palomino-Rivera was ordered deported and
removed from the United States to Peru. He was
formally removed from the United States on Febru-
ary 10, 1993, from Miami, Florida. Several months
later, on September 21, 1993, he was ordered
deported from Miami, and the next day he was
formally removed from the United States. Finally,
on March 27, 1997, Mr. Palomino-Rivera was
stopped by the United States Border Patrol in
Miami while attempting to enter the United
States. He was ordered to return voluntarily to
Peru by April 1997.

/2 sec. 2L1.2 provides in full:

(a)   Base Offense Level: 8

(b)   Specific Offense Characteristic

(1) If the defendant previously was deported
after a criminal conviction, or if the defendant
unlawfully remained in the United States follow-
ing a removal order issued after a criminal
conviction, increase as follows (if more than one
applies, use the greater):

(A) If the conviction was for an aggravated
felony, increase by 16 levels.

(B) If the conviction was for (i) any other
felony, or (ii) three or more misdemeanor crimes
of violence or misdemeanor controlled substance
offenses, increase by 4 levels.

  More specifically, Application Note 5 provides
that:
Aggravated felonies that trigger the adjustment
from subsection (b)(1)(A) vary widely. If subsec-
tion (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 aggra-
vated felony.

/3 We recognize that our conclusion may be in ten-
sion with the decisions of other circuits. See
United States v. Alfaro-Zayas, 196 F.3d 1338,
1342-44 (11th Cir. 1999); United States v. San-
chez-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). To the
extent our holding conflicts with these deci-
sions, we decline to follow them.

/4 Mr. Palomino-Rivera also submits that an ambigu-
ity in the statute defining an aggravated felony,
8 U.S.C. sec. 1101(a)(43)(G), suggests that only
a state felony that requires the imposition of a
mandatory minimum sentence can be the basis of an
enhancement under U.S.S.G. sec. 2L1.2. We believe
that such a reading is entirely implausible. If
Mr. Palomino-Rivera’s analysis were correct, it
would undermine substantially the need for Appli-
cation Note 5; yet the Commission, concerned
about the wide variety of situations that fall
within the ambit of the "aggravated felony"
definition, promulgated the note to ensure the
needed flexibility in the application of the
aggravated felony provision of the Guidelines.

/5 Mr. Palomino-Rivera urges us to consider the fact
that he only served nine months of the three-year
sentence on the theft by taking conviction. That
fact is irrelevant to our analysis. See 8 U.S.C.
sec. 1101(a)(48)(B) ("Any reference to a term of
imprisonment or a sentence with respect to an
offense is deemed to include the period of incar-
ceration or confinement ordered by a court of law
regardless of any suspension of the imposition or
execution of that imprisonment or sentence in
whole or in part.") (emphasis supplied).
