United States v. Alejandro Pacheco-Osuna

Opinion by Judge FERNANDEZ.

Alejandro Pacheco-Osuna pled guilty to being a deported alien found in the United States. See 8 U.S.C. § 1326 (a). At sentencing, the district court departed downward because, as it said, when Pacheco was arrested he may have been stopped without good cause. The United States appealed that departure. We vacate the sentence and remand.

BACKGROUND

Pacheco was deported from this country in July of 1992. In August of 1992, he was apprehended by police from the City of Santa Fe, California, on a charge of trespassing. Pacheco did not speak English, so the police contacted the United States Border Patrol for assistance in interpreting. When it was determined that Pacheco was an alien who was improperly in the country, the police turned him over to the border patrol agents.

Thereafter, Pacheco was indicted for the crime of being a deported alien who was found in the United States. He pled guilty pursuant to a plea agreement with the government. That agreement provided that if his sentence was over 21 months he could appeal, but that he otherwise waived his right to do so.

At sentencing, Pacheco argued that he should be given a downward departure because…