UNITED STATES of America, Plaintiff-Appellee, v. Leopaldo CUEVAS-GOMEZ, Defendant-Appellant

We consider here whether a district court has discretionary authority to depart downward from the sentence mandated by United States Sentencing Guideline (“USSG”) § 2L1.2(b)(2), which requires a 16-level upward adjustment for immigration defendants convicted of aggravated felonies. At sentencing, in response to defense counsel’s question, the district court stated that it lacked authority to depart in this case. The court, however, indicated that it “would not at all object to an appellate holding that [departure] is open to the courts.... [a]nd if held to be in error, obviously I would consider then whether [the defendant’s criminal history] is overstated in this ease.” Our review of whether the district court has authority to depart is de novo. United States v. Lira-Barraza, 941 F.2d 745, 746 (9th Cir.1991) (en bane). We have jurisdiction under 18 U.S.C. § 3742 (b) (review of sentence) and 28 U.S.C. § 1291 (review of final judgment). We hold that the downward departure sought by Cuevas-Gomez is within the district court’s authority, and we remand for reconsideration of Cuevas-Gomez’s sentence.

The district courts have statutory authority to depart from the Guidelines in those…