UNITED STATES of America, Appellee, v. Jesus AGUILAR-TORRES, Defendant-Appellant, 401 F. App'x 616

SUMMARY ORDER Defendant-appellant Jesus Aguilar-Torres appeals from a judgment of conviction in the United States District Court for the Southern District of New York (Baer, J.), entered August 6, 2009, following his entry of a plea of guilty to one count of illegally reentering the country following deportation in violation of 8 U.S.C. § 1326. The district court sentenced Aguilar-Torres principally to 36 months’ imprisonment.

On appeal, Aguilar-Torres challenges his sentence as procedurally unreasonable, asserting that the district court misapprehended its authority to grant a downward departure under Application Note 7 of § 2L1.2 of the United States Sentencing Guidelines. We assume the parties’ familiarity with the remaining facts and procedural history of this case. A district court commits procedural error if it misapprehends “the availability of departure authority.” United States v.

Selioutsky, 409 F.3d 114, 118 (2d Cir.2005). “In the absence of ‘clear evidence of a substantial risk that the judge misapprehended the scope of his departure authority,’ we presume that a sentencing] judge understood the scope of his authority.” United States v. Stinson, 465 F.3d 113, 114 (2d Cir.2006) (quoting United States v. Gonzalez, 281 F.3d 38, 42 (2d Cir.2002)).

However, if a judge’s “remarks create ambiguity as to whether the judge correctly understood an available [sentencing] option,” the appellate court should “remand for clarification,” unless “the record indicated clearly that the district court would have imposed the same sentence had it had an accurate understanding of its authority.” United States v. Sanchez, 517 F.3d 651, 665 (2d Cir.2008) (alteration in original) (internal quotation mark omitted).

The district court’s Guidelines calculations included a 16-level increase to the base offense level because Aguilar-Torres had been previously deported after conviction for a felony that is a “crime of violence.” See U.S.S.G. § 2L1.2(b)(l)(A)(ii). Aguilar-Torres requested a downward departure pursuant to Application Note 7 on the ground that his “crime of violence” did not meet the definition of an aggravated felony at 8 U.S.C. § 1101(a)(43) because the sentence for his felony conviction was not for more than one year of imprisonment. See U.S.S.G. § 2L1.2 cmt. n. 7.

The district court responded: [T]he 16 level enhancement really does seem a little outrageous to me.... [I]t seems like maybe I just need to understand a little more about how the guidelines came to — the Commission came to that conclusion. But I don’t expect you’re going to give me any — in any event, I mean if we look at the guidelines from a simply orthodox viewpoint, there is nothing wrong with these guidelines, and the offense level seems appropriate under the circumstances as does the criminal history category. A. 50-51.

Here, the district court questioned why the Guidelines impose an enhancement of 16 levels for a prior conviction for a “crime of violence,” but it ultimately concluded that the offense level did not substantially overstate the severity of Aguilar-Torres’s prior conviction. The district court’s remarks were sufficient acknowledgment of its authority to grant the downward departure, since a district court need not “by robotic incantations state ‘for the record’ ... that they are aware of this or that arguable authority to depart but that they have consciously elected not to exercise it.” United States v.

Brown, 98 F.3d 690, 694 (2d Cir.1996). Having declined to exercise the departure authority under Application Note 7, the district court nevertheless granted a downward variance and imposed a below-Guidelines sentence based on the factors under 18 U.S.C. § 3553(a). We conclude, therefore, that the district court’s remarks lack the ambiguity that would warrant remand for clarification. See Sanchez, 517 F.3d at 665. Even assuming, arguendo, the district court’s remarks evinced some ambiguity, remand would not be appropriate because the district court, having granted a variance, would impose the same sentence. Id.

We have considered Aguilar-Toi’res’s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.