                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         NOV 16 2000
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 99-6146
 v.
                                                  (D.C. No. CR-98-163-C)
 REYNALDO DE LA FUENTE-                                 (W.D. Okla.)
 RAMOS,

          Defendant-Appellant.


                                ORDER AND JUDGMENT      *




Before SEYMOUR , Chief Judge, KELLY and HENRY , Circuit Judges.



      Reynaldo De La Fuente-Ramos was convicted after a jury trial of eight

counts of transporting aliens who had entered and remained in the United States

illegally (violations of 8 U.S.C. § 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i)) and one

count of unlawful reentry into the United States (a violation of 8 U.S.C. § 1326).

Pursuant to § 2L1.2 of the United States Sentencing Guidelines, the district court

imposed a sixteen-level upward adjustment in the offense level because Mr. De


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
La Fuente had been previously convicted of an aggravated felony. It sentenced

him to concurrent fifty-seven month terms of imprisonment on each count,

followed by a two-year term of supervised release.

      In this appeal, Mr. De La Fuente argues: (1) the district court erred in

denying his motion to suppress; (2) his 1988 conviction for importing marijuana

should not have been used to enhance his sentence; (3) the district court erred in

refusing to depart downward from the Guideline range; and (4) based on his

rehabilitative efforts following sentencing, he is now entitled to a downward

departure. For the reasons set forth below, we affirm Mr. De La Fuente’s

conviction and sentence.



                                I. BACKGROUND

      At 1:45 a.m. on April 18, 1998, Oklahoma Highway Patrolman David Ross

observed a van traveling northbound on Interstate 35 near Hefner Road in

Oklahoma City. The van swerved toward the middle lane, and Trooper Ross

began to follow it. According to Trooper Ross’s affidavit (submitted by the

government at the district court hearing on Mr. De La Fuente’s motion to

suppress), he then observed “[t]he van weav[ing] from lane line to shoulder line

several times, touching three times.” See Rec. vol. I doc. 16, Ex. 1, at 1. At

trial, Trooper Ross gave a somewhat different account, stating that the van


                                          2
“swerved across the lane line into the next lane and it also swerved onto the

shoulder line.” Rec. vol IV, at 41. When confronted with his affidavit on cross

examination at trial, Trooper Ross stated that the affidavit and his trial testimony

were consistent because “touching” the lane line and “swerving across the lane

line into the next lane” are “technically” the same thing. See id.

      Trooper Ross followed the van and reported its license number to the

dispatcher. The dispatcher informed him that the van was registered to an

individual in Carrollton, Texas and had not been reported as stolen. Trooper Ross

then decided to stop the van to investigate possible drunken driving.

      As he approached the van on the shoulder of the interstate, Trooper Ross

noticed at least a dozen Hispanic adults in the back. The driver, Raul Paradez,

produced a Texas driver’s license, but he could not produce a vehicle license and

registration. Trooper Ross then asked Mr. Paradez to accompany him to the

patrol car, where he relayed Mr. Paradez’s driver’s license information to the

dispatcher and began to question him.

      Trooper Ross informed Mr. Paradez that he had been stopped because the

van was weaving. Mr. Paradez stated that he was tired and had been driving since

5:00 o’clock on the previous evening. He said that he did not have registration or

insurance because the van belonged to a company that was in the business of

“transporting people.” Rec doc. 16 Ex. 1, at 2. According to Trooper Ross, Mr.


                                          3
Paradez was reluctant to provide information about his destination but eventually

said that the van was headed to St. Louis. Mr. Paradez also mentioned Chicago

and New York, but he did not explain which city he would travel to first. He

added that the passenger in the front seat, Mr. De La Fuente, also worked for the

company and might be able to provide information.

      When asked about the people in the back of the van, Mr. Paradez said that

they were “just people they were giving a ride to.” Id at 3. He was unable to

explain how many of them were going to St. Louis or the other cities. He also

stated that all of the passengers had identification. When the trooper asked the

passengers if they had identification, none could provide it.

      Trooper Ross requested another patrolman to come to the scene. About

twenty minutes after Trooper Ross first noticed the van, Lieutenant Barry Ross

arrived. The two troopers then approached the van and asked the passengers if

they had any identification. After the passengers stated that they had no

identification, Trooper Ross requested the dispatcher to report the stop to

Immigration and Naturalization Service (INS) officials. INS officials spoke to

Lieutenant Ross, and one of the passengers and then requested the two patrolmen

to escort the van to the INS office in Oklahoma City.

      In September 1998, a federal grand jury indicted Mr. De La Fuente on ten

counts of transporting illegal aliens and one count of entering the United States


                                          4
after having been deported. Mr. De La Fuente pleaded not guilty and filed a

motion to suppress the evidence discovered during the stop of the van. He

challenged the initial stop as well as the continuing roadside detention during

which the troopers asked questions about travel destinations and the identity of

the passengers.

      The district court denied the motion to suppress, as well as Mr. De La

Fuente’s motion to reconsider the initial ruling. In its ruling on the motion to

reconsider, the court reasoned:

             [Trooper Ross] reasonably believed the weaving of the van
             at [that] hour of the morning could have been due to illegal
             driving under the impairment of an intoxicant. Based upon
             the trooper’s observations of the passengers and their
             traveling conditions, combined with his 14 years of law
             enforcement experience, including at least eight
             encounters with vehicles smuggling illegal aliens, and the
             answers of the driver and defendant, the trooper possessed
             reasonable and articulable suspicion that illegal smuggling
             activity was present. Therefore, additional detention to
             investigate was not improper. To maintain defendant’s
             view, the Court would establish that an investigative stop
             for a traffic violation which yielded suspected criminal
             activity in plain view—but unrelated to the purpose of for
             the stop—could not be continued in order to investigate
             the nature of the suspected activity. This view is not, nor
             could it be, the law.

Rec. doc. 30, at 3 (District Court Order, filed Nov. 30, 1998).

      Prior to trial, the government dismissed two of the transportation counts

with prejudice. The jury convicted Mr. De La Fuente on the remaining nine


                                          5
counts.

      In the sentencing proceedings, the government introduced a 1988

conviction in the United States District Court for the Southern District of Texas

for importing approximately twelve pounds of marijuana. The government argued

that this conviction constituted an aggravated felony under USSG §

2L1.2(b)(1)(A) and therefore warranted a sixteen level upward adjustment in the

offense level. The district court overruled Mr. De La Fuente’s objection to the

upward adjustment. Although acknowledging that the commentary to USSG §

2L1.2(b)(1)(A) authorized a downward departure, the court concluded that Mr. De

La Fuente’s admission that he had transported illegal aliens on three prior

occasions indicated that departure was not warranted. However, the court did

impose a sentence at the low end of the Guideline range: concurrent fifty-seven

month terms of imprisonment, followed by concurrent two year terms of

supervised release.



                                 II DISCUSSION

                               A. Motion to Suppress

      Mr. De La Fuente challenges the denial of his motion to suppress on two

grounds. First, he argues that Trooper Ross lacked a reasonable suspicion that he

had violated a traffic law. Second, he challenges the scope of Trooper and


                                         6
Lieutenant Ross’s subsequent interrogation. He maintains that, because there was

no evidence that the van was stolen, the patrolmen violated his Fourth

Amendment rights when they asked about travel plans and the identity of the

passengers in the back of a van.

      In considering the district court’s denial of the defendant’s motion to

suppress, the district court’s ultimate determination of Fourth Amendment

reasonableness is subject to de novo review. United States v. Little, 60 F.3d 708,

712 (10th Cir.1995). We accept the district court’s findings of fact unless clearly

erroneous and consider the evidence in a light most favorable to the government.

United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997).

      A routine traffic stop constitutes a seizure under the Fourth Amendment.

United States v. West, 219 F.3d 1171, 1175 (10th Cir. 2000). Our cases

characterize such stops as investigative detentions and assess their reasonableness

under the standards set forth in Terry v. Ohio, 392 U.S. 1, 19-20 (1968). We thus

make a dual inquiry, asking: (1) whether the stop was “justified at its inception;”

and (2) “whether it was reasonably related in scope to the circumstances which

justified the interference in the first place.” Terry, 392 U.S. at 20.

      As to the first inquiry, a traffic stop is valid under the Fourth Amendment

“if based on an observed traffic violation or if an officer has a reasonable

articulable suspicion that a traffic or equipment violation has occurred or is


                                          7
occurring.” United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en

banc). The officer’s subjective motives for stopping the vehicle are irrelevant.

See id.; accord Whren v. United States, 517 U.S. 806, 813 (1996) (stating that

“we have been unwilling to entertain Fourth Amendment challenges based on the

actual motivations of individual officers”).

      As to the second inquiry, our cases hold that the officer conducting the stop

may request vehicle registration and a driver’s license, run a computer check, and

issue a citation. United States v. Hunnicutt, 135 F.3d at 1345, 1349 (10th Cir.

1998). He or she may also ask about “travel plans . . . and the ownership of the

car.” United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989). However,

after the officer has issued the citation and the driver has produced “a valid

license and proof that he is entitled to operate the car, he must be allowed to

proceed on his way without being subject to further delay by police for additional

questioning.” United States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996) (citations

omitted). In two circumstances, the officer may engage in additional questioning:

(1) if he or she “has an objectively reasonable and articulable suspicion that

illegal activity has occurred or is occurring;” (2) if the subject of the additional

interrogation consents to it. United States v. Gonzalez-Lerma, 14 F.3d 1479,

1483 (10th Cir.1994) (citation omitted).




                                           8
1. The initial stop

      Mr. De La Fuente argues that Trooper Ross’s observations of the van

weaving within its lane were insufficient to justify the initial traffic stop. In

support of this argument, he invokes an Oklahoma statute, a decision of the

Oklahoma Court of Criminal Appeals, and several of our prior decisions.

      The Oklahoma statute on which Mr. De La Fuente relies, 47 Okla . Stat. §

11-309, provides that “[w]henever any roadway has been divided into two or more

clearly marked lanes for traffic . . .[a] vehicle shall be driven as nearly as

practicable entirely within a single lane. Shirley v. State, 321 P.2d 981 (Okla.

Crim. App. 1957), involves police officers’ stop of a car on the basis of “a slight

weaving motion not completely from one lane to the other.” Id. at 986. The

Oklahoma Court of Criminal Appeals reversed the defendant’s conviction for

driving a motor vehicle under the influence of intoxicating liquor, stating that

from the record it “was unable to ascertain the violation of any the statutes of this

state.” Id. It noted that “[i]t is not uncommon for automobiles traveling a four

lane highway with two lanes reserved for each direction to drive in one or the

other and certainly does not violate any of the state’s laws to be in the left lane

next to the median for purposes of preparing to pass a vehicle or for the purposes

of turning.” Id. The Shirley court did not address the Oklahoma statute requiring

vehicles to be driven “as nearly as practicable entirely within a single lane” (47


                                           9
Okla . Stat. § 11-309) nor did it address the question of whether the officers had

the reasonable suspicion necessary to make the initial stop under the Terry

standard.

      Nevertheless, the Tenth Circuit decisions on which Mr. De La Fuente relies

have directly addressed the validity of traffic stops for weaving within a lane. In

United States v. Lyons, 7 F.3d 973 (10th Cir. 1993), the court assessed the

validity of a stop based on the officer’s observation that a pickup truck had

“weave[d] three to four times within its lane of the divided highway.” Id. at 974.

Applying our prior decision in United States v. Guzman, 864 F.2d 1512, 1515

(10th Cir. 1988), the Lyons court inquired whether “a reasonable officer would

have made the stop in the absence of the invalid purpose.” Lyons, 7 F.3d at 975

(citing Guzman, 864 F.2d at 1517). 1 The court concluded that a reasonable

officer would not have made the stop. It criticized the officer’s reliance on

within-the-lane weaving as a justification for the stop:



      1
           Guzman has since been overruled by our decision in      United States v.
Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en banc). We there concluded
that “a traffic stop is valid under the Fourth Amendment if the stop is based on
an observed traffic violation or if the police officer has reasonable articulable
suspicion that a traffic or equipment violation has occurred or is occurring.” We
further stated that several factors considered under the    Guzman approach were
irrelevant to determining reasonableness under the Fourth Amendment: “whether
the stop was sufficiently ordinary or routine according to the general practice of
the police department or the particular officer making the stop” and whether “the
officer may have had other subjective motives for stopping the vehicle.”      Id.

                                         10
                     We also believe [the officer’s] admissions
             concerning the universality of drivers’ “weaving” in
             their lanes and the commonness of people’s avoiding eye
             contact with police officers while driving significantly
             undercut the rationality of using these factors as
             objective reasons for the legitimacy of the stop. Indeed,
             if failure to follow a perfect vector down the highway or
             keeping one’s eyes on the road were sufficient reasons
             to suspect a person of driving while impaired, a
             substantial portion of the public would be subject each
             day to an invasion of their privacy.

Id. at 976. The Lyons court added that the officer’s failure to make any effort to

determine the driver’s sobriety after effecting the stop provided an additional

reason for questioning the officer’s motive.

      We reached a similar conclusion in United States v. Gregory, 79 F.3d 973

(10th Cir. 1996). There, an officer observed one instance in which a truck

“cross[ed] two feet into the right shoulder emergency lane of [an] interstate [in

Utah].” Id. at 975-76. Utah has a weaving statute similar to Oklahoma’s. See Id

at 978 (quoting Utah Code Ann. § 41-6-61(1)). The court concluded, however,

that the officer had failed to establish a reasonable suspicion to make the stop on

the basis of the weaving statute:

             We do not find that an isolated incident of a vehicle
             crossing into the emergency lane of a roadway is a
             violation of Utah law. This interpretation of Utah law
             has been followed by the Utah courts. . . . We agree with
             the Utah court which noted that the statute requires only
             that the vehicle remain entirely in a single lane “as
             nearly as practical.” The road was winding, the terrain
             mountainous and the weather condition was windy.

                                         11
             Under these conditions any vehicle could be subject to
             an isolated incident of moving into the right shoulder of
             the roadway, without giving rise to a suspicion of
             criminal activity. The driver may have decided to pull
             over to check his vehicle and then have a sudden change
             of mind and pulled back into the traffic lane. Since the
             movement of the vehicle occurred toward the right
             shoulder, other traffic was in no danger of collision.
             These facts lead us to conclude that the single
             occurrence of moving to the right shoulder of the
             roadway which was observed by [the officer] could not
             constitute a violation of Utah law and therefore does not
             warrant the invasion of Fourth Amendment protection.

Gregory, 79 F.3d at 978 (citations omitted). The court also found that the officer

lacked a reasonable suspicion that the driver was fatigued. Id. (“[D]riving while

fatigued is not criminal activity and only if a driver is extremely fatigued can the

condition constitute a danger to public safety.”).

      According to Mr. De La Fuente, Trooper Ross’s observations were

insufficient to establish a failure to drive the van “as nearly as practicable entirely

within a single lane.” See 47 Okla . Stat. § 11-309. He further argues that

Shirley, Lyons, and Gregory establish that Trooper Ross lacked the reasonable

suspicion necessary to justify the traffic stop under the Fourth Amendment.

      We are not persuaded by this argument. Although the contrast between

Trooper Ross’s affidavit and his trial testimony suggests that he may have

exaggerated the extent of the van’s weaving in the later instance, even the lesser

degree of weaving described in the affidavit (i.e., the van’s touching the lane line


                                           12
three times, see Rec. vol. I doc. 16, Ex. 1, at 1), supports the district court’s

conclusion that Trooper Ross possessed the necessary reasonable suspicion to

make the initial stop of the van. As we noted in Gregory, one instance of weaving

may be insufficient to establish that a vehicle is not being driven “as nearly as

practicable” within a single lane. See Utah Code Ann. § 41-6-61(1)); 47 Okla .

Stat. § 11-309. However, there was more than one instance of such weaving here.



      More importantly, in this case the government has not asserted that Trooper

Ross’s observations establish a violation of the Oklahoma weaving statute.

Instead, the government argues that the three instances of weaving observed by

Trooper Ross gave rise to a reasonable suspicion that the driver of the van was

fatigued or impaired. See Aplee’s Supp. Br. at 11-13. That argument is

foreclosed by neither Lyons nor Gregory.

      As we have noted, Lyons’s conclusion that officer’s stop of the vehicle

violated the Fourth Amendment was based on a standard that examined the

officer’s motive and that has since been overruled. See Botero-Ospina, 71 F.3d at

785. Moreover, there is no indication in our opinion in Lyons that the vehicle in

question there actually touched the lane line, as did the van here. Compare

Lyons, 7 F.3d at 974 (noting that the vehicle “weave[d] three of four times within

its lane of the divided highway” with Trooper Ross’s affidavit. Rec. vol. I doc.


                                           13
16, Ex. 1, at 1 (stating that the van touched the lane line three times). Similarly,

the facts of Gregory are distinguishable, as they involve only one instance of a

vehicle weaving outside of its lane and road and weather conditions that could

have caused even an unimpaired motorist to weave. See Gregory, 79 F.3d at 978.

(“The road was winding, the terrain mountainous and the weather condition was

windy.”).

       Moreover, in a post- Botero-Ospina case involving circumstances analogous

to those at issue here, this circuit has concluded that an officer possessed

reasonable suspicion necessary to justify the stop of a motorist. In    United States

v. Ozbirn , 189 F.3d 1194, 1196 (10th Cir. 1999), the officer observed a mobile

home “drift onto the shoulder twice in less than a quarter mile.” Noting that, in

contrast to Gregory , the weather and road conditions were optimal, the court

concluded that the officer possessed probable cause necessary to justify the stop

for a violation of the Kansas weaving statute,    see id. at 1198 (citing Kan. Stat.

Ann. § 8-1522) , and that the officer had a reasonable suspicion that the driver

was impaired, see id. at 1199.

       Just as the officer in Ozbirn , Trooper Ross observed the van weaving on

more than one occasion. As in     Ozbirn , the weaving was not solely within the

lane. Accordingly, Trooper Ross’s observations provided him with a reasonable

suspicion that the driver of the van was impaired. Thus, the district court


                                            14
properly concluded that the initial stop of the van was reasonable under the

Fourth Amendment.



2. The Continuing Detention

       In his pro se appellate brief, Mr. De La Fuente also challenges Trooper and

Lieutenant Ross’s continuing detention of the van and its occupants to ask about

their travel plans and their identity. He further contends that his statements to

the troopers should be suppressed as fruit of the poisonous tree—the unlawful

detention.

       Mr. De La Fuente’s challenge to the detention is undermined by

established circuit law. We have held that an officer making a traffic stop may

ask about travel plans and ownership of the vehicle,     see Rivera , 867 F.2d at

1263, and that, if the driver and the passenger are unable to produce a valid

registration, a reasonable suspicion arises that the vehicle may be stolen, thereby

justifying further inquiry,   see United States v. Fernandez,   18 F.3d 874, 879 (10th

Cir.1994) (“[A] defining characteristic of our traffic stop jurisprudence is [that]

the defendant’s lack of a valid registration, license, bill of sale, or some other

indicia of proof to lawfully operate and possess the vehicle in question . . .

giv[es] rise to objectively reasonable suspicion that the vehicle may be stolen.”).

       As the government notes, Trooper Ross’s questioning of Mr. Paradez


                                            15
continued after he was unable to produce either a valid registration or an

explanation of why he did not have the required documents and as he awaited the

results of the driver’s license check. Trooper Ross began his questioning of the

passengers in the rear of the van only after Mr. Paradez provided varying

explanations of the van’s initial destination and appeared unable to provide

information about the passengers’ destination. At that point, Trooper Ross was

confronted with not only Mr. Paradez’s varying explanations of the van’s

destination but also with his statement that the company for which he worked was

in the business of “transporting people,” and the presence of at least a dozen

adults in the van. Those circumstances provided Trooper Ross with a reasonable

suspicion of an immigration violation, thus warranting further inquiry.     See

United States v. Galindo-Gonzales    , 142 F.3d 1217, 1224 (10th Cir. 1998)

(concluding that the failure to produce registration papers at a border checkpoint

provided justification for questions about the identity of the passengers);

Gonzalez-Lerma , 14 F.3d at 1483 (stating that an officer’s “objectively

reasonable and articulable suspicion that illegal activity has occurred or is

occurring” justifies additional questioning). In light of the passengers’

subsequent statements that they were unable to provide identification, the

continuing detention after Lieutenant Ross arrived was similarly justified. Thus,

the district court properly rejected Mr. De La Fuente’s Fourth Amendment


                                           16
challenge to the scope of his detention.



                      B. Mr. De La Fuente’s Prior Conviction

      Mr. De La Fuente challenges on two grounds the district court’s use of a

1988 federal court conviction for importing marijuana. First, he argues that the

conviction does not constitute an “aggravated felony” under 8 U.S.C. §

1326(b)(2). He then contends that the district court erred in applying the

definition of an “aggravated felony” that was not in effect at the time of the prior

conviction. These arguments are not supported by the law of this circuit.

      Under § 1326(b)(2), a longer sentence may be imposed upon an alien who

reenters the United States after a conviction of “an aggravated felony” (i.e.,

imprisonment not more than twenty years, compared to imprisonment for not

more than ten years for unlawful reentry after three or more misdemeanor

convictions and imprisonment for not more than two years for unlawful reentry

absent a criminal record). The definition of an “aggravated felony” set forth in 8

U.S.C. § 1101(a)(43) includes “illicit trafficking in a controlled substance (as

defined in section 802 of Title 21), including a drug trafficking crime (as defined

in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B), In turn, 18 U.S.C. §

924(c) defines a drug trafficking crime to include “any felony punishable under

the Controlled Substance Import and Export Act (21 U.S.C. § 951 et seq.).” 18


                                           17
U.S.C. § 924(c)(2).

       That definition of a “drug trafficking crime” defeats Mr. De La Fuente’s

first challenge to the prior conviction. As the government notes, the importation

of marijuana is punishable under the Controlled Substance Import and Export

Act, particularly 21 U.S.C. § 952. Thus, the district court properly concluded

that Mr. De La Fuente had been convicted of a drug trafficking crime.

       Mr. De La Fuente’s second challenge (based on the retroactive application

of the definition of an “aggravated felony”) is foreclosed by this circuit’s

decision in United States v. Aranda-Hernandez        , 95 F.3d 977 (10th Cir. 1996).

There, we held that the § 1326(b)(2) aggravated felony enhancement applies to

“all past aggravated felonies, regardless of the date committed.”     Id. at 983. We

explained that the definition of the term “aggravated felony” that should be

applied to a particular case is the definition in effect at the time of the unlawful

reentry, rather than the definition in effect at the time the aggravated felony was

committed. Application of the sentencing enhancement to past aggravated

felonies does not violate the Ex Post Facto Clause because the act being punished

is the reentry rather than the original felony.    Id. We therefore conclude that the

district court properly relied on Mr. De La Fuente’s prior conviction for

importing marijuana in increasing his sentence.




                                              18
                         C. Refusal to Depart Downward

      Next, Mr. De La Fuente challenges the district court’s refusal to depart

downward from the Guideline sentencing range. His argument for downward

departure is based on Application Note 5 to USSG § 2L1.2

      Section 2L1.2 sets the offense level for unlawful entry or remaining in the

United States. Section 2L1.2(a) provides for a sixteen level increase in the

offense level if the defendant has been convicted of an aggravated felony.

Section 2L1.2(b) provides for a four-level increase if the prior conviction was for

“any other felony” or if the defendant has three or more prior misdemeanor

convictions involving crimes of violence or controlled substance offenses.

Application Note 5 explains that “the [relative lack of] seriousness of the

aggravated felony” may justify a downward departure:

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

USSG 2L1.2 comment. n. 5.

      As a general rule, as long as the district court understood its authority to

depart downward from the Guidelines, we lack authority to review its refusal to

do so. United States v. Fagin , 162 F.3d 1280, 1282 (10th Cir.1998) (“It is well

                                         19
settled that an appellate court lacks jurisdiction to review a sentencing court’s

refusal to depart from the Sentencing Guidelines when the sentencing court was

aware that it had the authority to depart but declined to exercise that authority

and grant the departure.”).

      Here, the district court’s remarks at sentencing indicate that it properly

understood its authority:

             The departure, under Application Note 5, is discretionary.
             It is not mandated by the guidelines. It’s simply suggested
             that the prior aggravated felony, if not as serious as the
             others, might be considered as a reason for departure. I
             think it is a logical conclusion. However, in this case, it
             ignores the fact that Mr. De La Fuente has admitted to at
             least three previous acts of smuggling unlawful aliens.
             That admission is totally disregarded in any calculation
             under the guidelines and I think that is inappropriate. I
             think it should be regarded. It should be taken into
             account and I will take it into account by declining to
             depart downward based on the relative lack of seriousness
             of the previous aggravated felony.

Rec. vol. VII at 8-9 (Tr. of March 23, 1999 sentencing). Accordingly, we lack

jurisdiction to review the district court’s refusal to depart downward from the

Guideline range.



  D. Requested Downward Departure Based on Post-Sentencing Rehabilitative
Efforts

      Mr. De La Fuente also argues that he is entitled to a downward departure

based on the fact that he has “undergone a series of social, educational Christian

                                          20
instructive programs that have unequivocally enhanced his self improvement”

and that he has “dissociated himself from any nefarious activities and does not

have any affiliation with any criminal enterprise or persons.” Aplt’s Pro Se Br. at

20.

      In United States v. Warner , 43 F.3d 1335, 1340 (10th Cir.1994), we held

that, even in an instance in which a case is remanded for resentencing, conduct of

a defendant occurring after the original sentencing proceeding may not be

considered by the district court as a basis for downward departure at the second

sentencing proceeding. The cases on which Mr. De La Fuente relies do not

contradict Warner : they involve rehabilitative efforts occurring after the

commission of the offense but before the initial sentencing.   See, e.g. , United

States v. Maier , 975 F.2d 944 (2d Cir. 1992) (concluding that defendant’s post-

offense, pre-sentencing rehabilitative efforts warranted downward departure);

United States v. Harrington , 947 F.2d 956 (D.C. Cir. 1991) (same);    see also

United States v. Whitaker , 152 F.3d 1238, 1240 (10th Cir.1998) (holding that

post-offense rehabilitative efforts “may provide a basis for departure”).

      Post-sentencing factors warranting sentencing modification are addressed

by a federal statute, 18 U.S.C. § 3582 (c)(1). Section 3582 authorizes the

Director of Prisons to file a motion seeking a reduction of imprisonment with the

district court based on certain factors. There is no indication that the Director of


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Prisons has filed such a motion here, and a downward departure based on Mr. De

La Fuente’s post-sentencing conduct is thus not warranted.



                              E. Apprendi v. New Jersey

      Finally , in a second supplemental brief, Mr. De La Fuente argues that the

Surpeme Court’s decision in     Apprendi v. New Jersey , 120 S. Ct. 2348 (2000)

indicates that the district court erred by failing to instruct the jury that it must

find beyond a reasonable doubt that he had been convicted of an aggravated

felony. Mr. De La Fuente acknowledges that his argument is foreclosed by the

Supreme Court’s prior decision in     Almendez-Torres v United States    , 523 U.S.

224 (1998).

      The Supreme Court there held that 8 U.S.C. § 1326(b)(2) is a penalty

provision that authorizes an enhanced sentence and that the government is not

required to charge the fact of an earlier conviction in the indictment. However,

as Mr. De La Fuente observes, one of the justices in the     Almendez-Torres

majority stated in a concurrence in   Apprendi that the earlier case was incorrectly

decided. See Apprendi , 120 S. Ct. at 2379 (Thomas, J., concurring).

      Almendez-Torres has not been overrruled, and we are bound to follow it.

Indeed, Mr. De La Fuente acknowledges that “relief is currently foreclosed in

this court” and that he has raised the argument “in order to preserve his claim for


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review by the United States Supreme Court.”       Aplt’s Second Supp. Br. at 2. We

therefore reject Mr. De La Fuente’s      Apprendi -based challenge to his conviction

and sentence.



                                  III. CONCLUSION

      We DISMISS for lack of jurisdiction Mr. De La Fuente’s appeal of the

district court’s refusal to depart downward from the Guideline range. We

AFFIRM the district court’s denial of Mr. De La Fuente’s motion to suppress, as

well as his convictions and sentences.



                                                  Entered for the Court

                                                  Robert H. Henry
                                                  Circuit Judge




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