U.S. v. Alfaro-Zayas

• Decision Date: 02 December 1999
• Docket Number: D,ALFARO-ZAYA,No. 99-10279,99-10279
• Citation: 196 F.3d 1338
• Parties: (11th Cir. 1999) UNITED STATES of America, Plaintiff-Appellee/ Cross-Appellant, v. Joseefendant-Appellant/ Cross-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1338

196 F.3d 1338 (11th Cir. 1999)

UNITED STATES of America, Plaintiff-Appellee/ Cross-Appellant, v. Jose ALFARO-ZAYAS, Defendant-Appellant/ Cross-Appellee.

No. 99-10279

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Dec. 2, 1999.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Southern District of Florida.(No. 98-06167-CR-DTKH), Daniel T.K. Hurley, Judge.

Before COX, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:

Jose Alfaro-Zayas appeals his seventy-seven month sentence for illegal re-entry into the United States after deportation in violation of 8 U.S.C. 1326(a) and (b)(2). Specifically, he asserts that the district court erred in concluding that it did not have the discretion to depart downward from the recommended sentence as calculated under the United States Sentencing Guidelines.

On December 4, 1998, Alfaro-Zayas pled guilty to re-entry of a deported alien. See 8 U.S.C. 1326(a), (b)(2). The Presentence Investigation Report ("PSI") classified his 1992 conviction for transportation/ sale of cocaine base (the "1992 drug conviction") as an aggravated felony under 8 U.S.C. 1101(a)(43)(B) and 21 U.S.C. 802.¹ During the sentencing hearing, the court accepted the 1992 drug conviction as an aggravated felony sufficient to support a sixteen-level increase in the base level of the current offense under U.S.S.G. 2L1.2(b)(1)(A). Consequently, the court found the total offense level to be twenty-one. The PSI also listed Alfaro-Zayas's prior convictions for assault with a deadly weapon, battery, automobile burglary, as well as an earlier conviction re-entry of a deported alien and accorded him a total of eighteen criminal history points, placing Alfaro-Zayas in Category VI.

During the sentencing hearing, Alfaro-Zayas's counsel made an oral motion requesting that the court reconsider the 1992 drug conviction and make a downward departure in the offense level because it overstated the seriousness of his criminal conduct. Defense counsel explained that Alfaro-Zayas's conduct underlying the 1992 drug conviction and his classification as an aggravated felon was a twenty-dollar sale of cocaine base. He argued that the court had the authority to grant his motion and make a downward departure under U.S.S.G. 4A1.3 (1998).²

The district court denied the motion to depart downward because it found that 4A1.3 was inapplicable. The court further concluded that it did not have the discretion to depart downward from the Sentencing Guidelines because to do so would "effectively just cross[ ] out a prior conviction," R2-32, and require the court to "simply cast[ ] the sentencing guidelines aside." Id. at 30. Alfaro-Zayas appeals the court's conclusion that it had no discretion to depart downward given his status as an aggravated felon.

Generally, "decisions by a district court not to depart downward from the prescribed sentencing guidelines range" are not reviewable on appeal. United States v. Rudisill, 187 F.3d 1260, 1265 (11th Cir.1999). "Such decisions are reviewable, however, if the district court denies the downward departure because of an erroneous belief that the court lacked the authority to make such a departure." Id.

Alfaro-Zayas urges this court to extend our reasoning in United States v. Webb, 139 F.3d 1390 (11th Cir.1998), to find that a sentencing court has the authority to depart downward pursuant to 4A1.3 when the sentence has been increased under 2L1.2(b)(1)(A)³ because the defendant was previously convicted of an aggravated felony. In Webb, we held that "given the appropriate factual determinations," 139 F.3d at 1396, ... 4A1.3 does authorize a sentencing court to downward depart "regardless of a defendant's status as a career offender under 4B1.1," id. at 1395. The reasoning in Webb does not support the conclusion that 4A1.3 authorizes downward departure by the sentencing court when the defendant has been classified as an aggravated felon under 2L1.2(b)(1)(A).

Although 4A1.3 and 2L1.2(b)(1)(A) both deal with a defendant's past criminal acts, they do so for different purposes. Chapter Four of the Sentencing Guidelines designates the criminal history category, while Chapter Two defines offense conduct.⁴ Section 4A1.3 provides for horizontal departure to a different criminal history category when the sentencing court determines that the defendant's "criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." U.S.S.G. 4A1.3, p.s. (emphasis added). In this case, Alfaro-Zayas does not argue that his criminal history category is not reflective of his past conduct. Instead, Alfaro-Zayas suggests that his underlying conviction for possession/ transportation of cocaine should not be considered an aggravated felony under 2L1.2(b)(1)(A). In the past, we have only applied 4A1.3 "to a pattern of criminal conduct, not to an individual crime" as Alfaro-Zayas suggests we do here. United States v. Phillips, 120 F.3d 227, 232 (11th Cir.1997).

Deviation from the offense levels assigned in 2L1.2 requires the sentencing court to progress along the vertical axis of the sentencing table to a different offense level.⁵ "This court has distinguished between 'horizontal' and 'vertical' departures." United States v. Melvin, 187 F.3d 1316, 1323 n. 3 (11th Cir.1999). Section 4A1.3 provides the sentencing court the discretion to move along the horizontal axis of the sentencing table when it believes the criminal history category assigned by the Sentencing Guidelines is not appropriate; however, this section does not authorize the sentencing court to adjust the offense level when the court finds that the underlying conduct does not support the assigned offense level.⁶ Thus, the district court correctly concluded that 4A1.3 was not applicable to Alfaro-Zayas's motion that the court depart downward because his 1992 drug conviction should not be considered an aggravated felony under 2L1.2(b)(1)(A).

While not empowered under 4A1.3, the district court did have the authority under 2L1.2 to evaluate the aggravated felony which triggered the increase in Alfaro-Zayas's offense level and to depart downward if the seriousness of the underlying aggravated felony warranted such a departure. See U.S.S.G. 2L1.2, comment. (n. 5) (hereinafter "application note five"). Specifically, application note five provides:

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.

Id. This comment explains that, when the sentencing court finds the delineated factors within a case, that case may not be within the "heartland" of the Sentencing Guidelines and the court may consider whether departure is warranted. See 1998 U.S.S.G. Ch. 1, Pt. A., intro. comment (4(b)); see also Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392. 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Further, application note five suggests that, when the three factors identified are all present in a given case, that case is more apt to be atypical and the sentencing court is encouraged to make a downward departure based on those features. Koon, 518 U.S. at 94, 116 S.Ct. at 2045; see also United States v. Diaz-Diaz, 135 F.3d 572, 581 (8th Cir.1998) (finding that application note five made "the 'seriousness of the aggravated felony' ... an encouraged factor upon which a departure may be based").

All the elements of application note five are not present in Alfaro-Zayas's case. While we cannot operate as factfinders, it is evident from the record that Alfaro-Zayas has been convicted of more than one felony. See PSI at pp. 5-9. These prior convictions remove Alfaro-Zayas's case from the realm for which departures are encouraged by application note five without any further inquiry into the seriousness of the predicate felony conviction. See United States v. Chavez-Valenzuela, 170 F.3d 1038 (10th Cir.1999) (finding 2L1.2, comment. (n. 5) inapplicable to a motion for downward departure when one of the three stated elements is not present).

While Alfaro-Zayas's case does not present the combination of factors upon which the Sentencing Commission has encouraged departure, Alfaro-Zayas requested that the court consider the amount of the drugs involved in his 1992 drug conviction as a basis for departure. The amount of drugs involved in a drug conviction is not a factor the Sentencing Commission has prohibited or discouraged a sentencing court from considering when determining whether to depart from the recommended sentence. "A sentencing court may depart on the basis of a factor not addressed by the Sentencing Commission if the court determines that the factor takes the case out of the Guideline's heartland after considering the 'structure and theory of both the relevant individual guidelines and the Guidelines taken as a whole.' " Melvin, 187 F.3d at 1321 (quoting Koon, 518 U.S. at 109, 116 S.Ct. at 2035).

Therefore, the district court could have departed downward if, after engaging in the analysis required by Koon, it found circumstances that removed Alfaro-Zayas's case from the heartland of the Sentencing Guidelines. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 563 (9th Cir.1998) (en banc) (concluding that, under the Koon analysis, the district court may consider the nature of the aggravated felony when deciding whether to depart downward from the Guideline's sentencing range).⁷ See also United States v. Robles-Medina, No. 98-4172 (10th Cir. June 23, 1999) (finding that, under Koon and U.S.S.G....