UNITED STATES of America, Plaintiff-Appellant, v. Daniel ALEJO-ALEJO, Defendant-Appellee, 286 F.3d 711

Vacated and remanded by published opinion. Chief Judge WILKINSON wrote the majority opinion, in which Judge TRAXLER joined. Judge MICHAEL wrote a dissenting opinion. OPINION WILKINSON, Chief Judge. Daniel Alejo-Alejo pleaded guilty to one count of being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326(

a) and (b)(2). At the sentencing hearing, the district court departed downward from the applicable Sentencing Guideline range by reducing the offense level that would otherwise have resulted. Because we find that the district court erred in departing downward when the defendant did not meet the Sentencing Commission’s enumerated requirements for such a departure, we vacate the sentence in this case and remand for resen-tencing. I. Daniel Alejo-Alejo is a native and citizen of Mexico who entered the United States in 1989 when he was 17 years old.

He remained in the United States and resided in the Rockingham, North Carolina area. In 1994, Alejo-Alejo was convicted in North Carolina state court for, inter alia, misdemeanor death by motor vehicle, in violation of N.C. Gen.Stat. § 20 141.4(a)(2), and felony failure to stop after an accident and to remain at the scene, in violation of N.C. Gen.Stat. § 20 166(a). The charges arose out of a motor vehicle accident in which Alejo-Alejo attempted to pass the car in front of him at the same time that a third vehicle, which was behind Alejo-Ale-jo, attempted to pass as well.

Alejo-Ale-jo’s vehicle collided with the third vehicle. That vehicle flipped over and the driver of that car, a deputy sheriff, was killed. Ale-jo-Alejo fled the scene of the accident and was later arrested. Alejo-Alejo received a five year sentence and was released from prison on October 1,1996. While incarcerated, Alejo-Alejo married an American citizen. Once he was released from prison, he remained in the United States. He applied for and received a work permit and found employment in North Carolina.

However, a 1997 change in the immigration laws required that any non-citizen who, like Alejo-Alejo, had a previous felony conviction be deported. The law applied retroactively and as a result, Alejo-Alejo was deported in March 2000. At some point after his deportation, Ale-jo-Alejo returned to the United States illegally. On June 29, 2000, INS agents arrested Alejo-Alejo. He was charged with violating 8 U.S.C. §§ 1326(

a) and (b)(2), which made illegal the re-entry of a deported alien after conviction for an aggravated felony. He pleaded guilty to being an illegal alien found in the United States after deportation. A Presentence Report (“PSR”) was then prepared for sentencing. The PSR classified the misdemeanor death by motor vehicle as a felony because it was punishable by a term of up to two years in prison and thus qualified as a felony for these purposes. See 8 U.S.C. § 1101(a)(43) (defining aggravated felony).

Because his prior deportation arose from a conviction for an aggravated felony, the PSR recommended that Alejo-Alejo receive an offense level enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A) (2000). The addition of a 16 level enhancement to the base offense level of 8, U.S. Sentencing Guidelines Manual § 2L1.2(a), partially offset by a 3 level credit for acceptance of responsibility, U.S. Sentencing Guidelines Manual § 3E1.1, resulted in a total offense level of 21. Aejo-Alejo had a Criminal History Category of III.

Therefore, according to the Sentencing Guidelines, the range for imprisonment was 46 to 57 months in prison. Alejo-Alejo conceded that the PSR properly calculated his offense level and the district court ratified the parties’ agreement on this issue. ’ Although he conceded that the PSR properly calculated his offense level under § 2L1.2, Alejo-Alejo requested a downward departure based, inter alia, on the alleged relative lack of seriousness of the offense that triggered the aggravated felony enhancement. Alejo-Alejo argued that the district court could depart under a “heartland” theory. See U.S.

Sentencing Guidelines Manual ch. 1, pt. A, introductory cmt. 4(b) & § 5K2.0 (2000). The United States opposed such a departure and argued that Application Note 5, U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 5 (2000), delineated the only circumstances under which a district court could consider a departure based on the seriousness of the underlying felony. Application Note 5 allows a downward departure as follows: If subsection (b)(1)(

A) applies [the 16-level aggravated felony enhancement], 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 an offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony. U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 5. The United States contended, and Alejo-Alejo agreed, that he did not satisfy the criteria set forth in Application Note 5 because his sentence for the underlying aggravated felony had exceeded one year. The district court, however, determined that the convictions that triggered the offense level increase under § 2L1.2(b)(l)(

A) differed in kind from the offenses the Sentencing Commission intended to subject to the aggravated felony enhancement, notwithstanding the fact that Alejo-Alejo failed to meet the criteria set forth in Application Note 5. The district court then departed downward eight offense levels, shifting the imprisonment range from 46-57 months to 18-24 months, and sentenced Alejo-Alejo to 21 months in prison. The United States appeals and challenges the authority of the district court to depart downward in this case. II.

Alejo-Alejo contends that he was due a downward departure because his prior felony conviction was outside the heartland of aggravated felonies. He fails, however, to meet the criteria the Sentencing Commission (“Commission”) set forth in Application Note 5 for downward departures based on the seriousness of the aggravated felony. The Commission has specifically set forth the criteria for when a downward departure should be made based on the seriousness of the prior felony conviction and we are not in a position to second guess that decision. A.

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 account by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.’ ” U.S. Sentencing Guidelines Manual § 5K2.0 (quoting 18 U.S.C. § 3553(b)).

With the exception of a few factors that the Guidelines specifically note may not be considered as grounds for departures by the sentencing court, the Guidelines do not limit “ ‘the kinds of factors, whether or not mentioned anywhere else in the guidelines, that could constitute grounds for departure in an unusual case.’ ” Koon v. United States, 518 U.S. 81, 93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (quoting U.S. Sentencing Guidelines Manual ch. 1, pt. A, introductory cmt. 4(b)).

However, because the Guidelines were established, inter alia, to create uniformity and regularity in the sentencing of similarly situated defendants, “[b]efore a departure is permitted, certain aspects of the case must be found unusual enough for it to fall outside the heartland of cases in the Guideline.” Id. at 98, 116 S.Ct. 2035. This is often referred to as the heartland theory for departures. See U.S. Sentencing Guidelines Manual ch. 1, pt. A, introductory cmt. 4(b) & § 5K2.0.

A district court may determine that a case does not fall within the Guideline’s heartland and exercise its discretion to depart downward only if “the circumstances and consequences of a case are ‘atypical’ or ‘unusual.’” United States v. Rybicki, 96 F.3d 754, 757 (4th Cir.1996) (citing 18 U.S.C. § 3553(b)). A district court must decide what, if any, circumstances or consequences of the offense make the case “atypical” and identify those factors for consideration in sentencing. Id.

Once the district court has identified factors which could potentially remove a case from the heartland, each factor must be identified “according to the Guidelines’ classification as a ‘forbidden,’ ‘encouraged,’ ‘discouraged,’ or ‘unmentioned’ basis for departure.” Id. Encouraged factors are normally an appropriate basis for departure, unless the factors have been adequately taken into account by the applicable guideline. See Koon, 518 U.S. at 96, 116 S.Ct. 2035; Rybicki, 96 F.3d at 757-58.

Conversely, discouraged factors may only be relied on for a departure “in exceptional cases.” Koon, 518 U.S. at 95, 116 S.Ct. 2035 (quoting U.S. Sentencing Guidelines Manual ch. 5, pt. H, introductory cmt.); Rybicki, 96 F.3d at 758. Departures based on unmentioned factors should be “highly infrequent.” Koon, 518 U.S. at 96, 116 S.Ct. 2035 (quoting U.S. Sentencing Guidelines Manual ch. 1, pt. A, cmt. 4(b)); Rybicki, 96 F.3d at 758. Finally, forbidden factors may not be considered at all. Koon, 518 U.S. at 95-96, 116 S.Ct. 2035. B.

Alejo-Alejo argues that the facts of his case were atypical and as such were not adequately considered by the Commission. We disagree. “Given the comprehensive sentencing structure embodied in the guidelines, ‘[o]nly rarely will we conclude that a factor was not adequately taken into consideration by the Commission.’” United States v. Weinberger, 91 F.3d 642, 644 (4th Cir.1996) (quoting United States v. Jones, 18 F.3d 1145, 1149 (4th Cir.1994)).

In drafting the enhancement provision at issue in this case, the Commission explicitly adopted the broad definition of “aggravated felony” contained in 8 U.S.C. § 1101(a)(43). See U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 1. In so doing, the Commission expressly recognized that the crimes “that trigger the adjustment from subsection (b)(1)(A) [the 16 level aggravated felony enhancement] vary widely.” U.S. Sentencing Guidelines Manual § 2L1.2, cmt. n. 5.

While appellant argues that the aggravated felony of which he was convicted, death by motor vehicle, did not involve any criminal intent and for that reason is distinguishable from the other aggravated felonies, the Commission adopted a broad definition of aggravated felony that included this offense. The Commission then dealt directly with potential problems that could result from such a broad definition. It established three criteria that must be met before a district court may consider a downward departure based on the seriousness of the underlying felony.

Appellant did not meet those criteria, and to excuse that failure now would simply be to substitute our judgment for that of the Commission. When the district court opted to depart based on a general heartland principle, U.S. Sentencing Guidelines Manual § 5K2.0, it did not address the Commission’s directives in the commentary to § 2L1.2. The Commission, by establishing three criteria that must be met before a downward departure may be considered based on the seriousness of the underlying felony, defined the heartland of cases included in § 2L1.2 to be all those not covered by the criteria in Application Note 5.

To allow courts to redefine the heartland of cases and then depart when they believe the sentence is outside this heartland ignores the goals of regularity and uniformity in sentencing that the Guidelines were designed to promote. This approach to the Sentencing Guidelines generally, and to § 2L1.2 specifically, has already been adopted by four other circuits. See United States v. Palomino-Rivera, 258 F.3d 656, 659-60 (7th Cir.2001); United States v. Marquez-Gallegos, 217 F.3d 1267, 1270-71 (10th Cir.), cert. denied, 531 U.S. 905, 121 S.Ct. 246, 148 L.Ed.2d 178 (2000); United States v.

Yanez-Huerta, 207 F.3d 746, 750 n. 3 (5th Cir.), cert. denied, 531 U.S. 981, 121 S.Ct. 432, 148 L.Ed.2d 440 (2000); United States v. Tappin, 205 F.3d 536, 539-42 (2d Cir.), cert. denied, 531 U.S. 910, 121 S.Ct. 260, 148 L.Ed.2d 189 (2000). As the Tenth Circuit noted in Marquez-Gallegos, the Commission had acknowledged the possibility that, because of the large number of qualifying aggravated felonies, the enhancement provision would apply frequently and “may result in a disproportionately harsh sentence.” 217 F.3d at 1270.

However, the Tenth Circuit also found that the “Commission, in promulgating Application Note 5, implicitly defined the ‘heartland’ of such cases to be all those not falling within the class delineated therein.” Id. at 1270-71. Thus, the Tenth Circuit concluded that a district court “lack[s] discretion to depart under § 5K2.0” based on the seriousness of the underlying felony when the defendant fails to satisfy the requirements of Application Note 5. Id. at 1271. We agree with this reasoning. The Second Circuit’s reasoning in Tap-pin is similarly sound. See 205 F.3d at 539-42.

There, the court stated that “[t]o permit a sentencing court in these circumstances to depart downwardly absent satisfaction of all three criteria in Application Note 5 would ... render the Note effectively meaningless.” Id. at 541. Alejo-Alejo contends that we should read Application Note 5 as setting forth criteria that, when met, turn the seriousness of the aggravated felony into an encouraged factor for departure.

And when the criteria in Note 5 are not met, a departure based on the seriousness of or lack of intent required for the aggravated felony is simply an unmentioned or even a discouraged factor for departure. In other words, Alejo-Alejo argues that Application Note 5 does not prohibit a downward departure when the criteria are not met, it just does not encourage such a departure. To begin with, urging a downward departure based on a discouraged or unmentioned factor would hardly resolve the matter in Alejo-Alejo’s favor.

As noted, the Supreme Court has emphasized that discouraged factors may be the basis for departure only “in exceptional cases” and departures based on unmentioned factors will be “highly infrequent,” Koon, 518 U.S. at 95-96, 116 S.Ct. 2035, and it is anything but clear that a lethal automobile crash where someone flees the scene and is then sentenced to five years in prison represents the sort of circumstances that would warrant departing downward on that basis.

In all events, like the Second Circuit in Tappin, we find nothing in the “sentencing guidelines, policy statements, and official commentary of the Sentencing Commission,” 18 U.S.C. § 3553(b), to support appellant’s reading of Application Note 5. See Tappin, 205 F.3d at 541. The Commission took into account the varying severities of aggravated felonies when it promulgated Application Note 5 and “defined the heartland of § 2L1.2 by exclusion.” Palomino-Rivera, 258 F.3d at 659.

Because this factor was “adequately taken into account” by the Commission when § 2L1.2 was promulgated, it is not the proper basis for a departure unless the defendant has met the criteria enumerated in Application Note 5. 18 U.S.C. § 3553(b). To find otherwise would reduce the criteria set forth in Application Note 5 to a mere suggestion that sentencing courts may disregard as they see fit. III. At heart this case is disarmingly simple.

The Sentencing Commission set forth three criteria that must be satisfied before “a downward departure may be warranted.” Alejo-Alejo did not meet those three criteria and thus was not eligible for a downward departure. Because he received such a departure, we must vacate the sentence in his case. VACATED AND REMANDED. . We recognize that this decision is also in some tension with the approach in three other circuits. See United States v. Alfaro-Zayas, 196 F.3d 1338, 1342 (11th Cir.1999); United States v. Sanchez-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). We, however, find these authorities unpersuasive and note that in Sanchez-Rodriguez this issue was discussed only briefly in dictum, that Alfaro-Zayas relies almost exclusively on the Sanchez-Rodriguez decision, and that in Diaz-Diaz the court affirmed the district court’s "fact-based judgment call,” 135 F.3d at 581, to depart downward without considering whether the defendant's apparent failure to satisfy the criteria in Application Note 5 precluded such a departure. See United States v. Tappin, 205 F.3d 536, 541 n. 7 (2d Cir.2000). .

The Sentencing Guidelines were amended on November 1, 2001 and the Commission adopted a more graduated sentencing structure in § 2L1.2 and deleted Application Note 5. Both Alejo-Alejo and the government also appear to have made some alternative arguments with respect to the sentencing determination below. The effect, if any, of the alternative arguments and the amended guidelines is something we leave for the district court on remand.