Martinez-Lorenzo

United States v. Martinez-Lorenzo

Good Law
62 F. App'x 814
United States Court of Appeals for the Ninth CircuitMay 6, 2003No. 02-50336; D.C. No. CR-01-01102-WMBCalifornia201 words

Opinion

Lead Opinion

MEMORANDUM **

The government appeals the district court’s grant of an eleven-month downward departure in defendant Leonardo Martinez-Lorenzo’s sentence. We vacate the sentence and remand for resentencing.

The district court has discretion in deciding to depart from the Sentencing Guidelines in certain circumstances. See Koon v. United States, 518 U.S. 81, 98-99 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996). We conclude that the district court did not abuse its discretion in determining that the defendant’s personal rehabilitation from his prior offense and his low likelihood of reoffending justify a downward departure.

The district court reached the range permitting a thirty-month sentence, however, by departing on both the criminal history axis and the offense level axis. The appropriate departure on the basis of likelihood of recidivism is only in the criminal history category, not the offense level. See United States v. Martin, 278 F.3d 988, 1003 (9th Cir.2002). Nothing in the district court’s analysis supports a departure on the offense level axis. We therefore must VACATE Martinez-Lorenzo’s sentence and REMAND for resentencing.

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