United States v. Samuel Arellano-Gallegos, AKA Juan Vasquez-Chavez

387 F.3d 794 UNITED STATES of America, Plaintiff-Appellee, v. Samuel ARELLANO-GALLEGOS, aka Juan Vasquez-Chavez, Defendant-Appellant. No. 01-10298. United States Court of Appeals, Ninth Circuit. Submitted July 15, 2003. * Filed December 11, 2003. Amended October 27, 2004. Christina M. Cabanillas, Deputy Chief, Appellate Section, United States Attorney's Office, Tucson, AZ, for the defendant-appellant. Peter M. Raptis, Assistant Federal Public Defender, Tucson, AZ, for the plaintiff-appellee. Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-00-01283-RCC. Before: KLEINFELD, WARDLAW, Circuit Judges, and POGUE, Judge. ** ORDER 1 The Opinion and Dissent filed December 11, 2003, slip op. 17423, and appearing at 351 F.3d 966 (9th Cir.2003) are hereby AMENDED. The Clerk shall file the attached Amended Opinion and Amended Dissent. 2 A majority of the panel has voted to deny the petition for panel rehearing. Judge Kleinfeld would have granted the petition. Judge Wardlaw voted to deny the petition for rehearing en banc. Judge Pogue also so recommended. Judge Kleinfeld would have granted the petition. 3 The full…

*796 ORDER

The Opinion and Dissent filed December 11, 2003, slip op. 17423, and appearing at 351 F.3d 966 (9th Cir.2003) are hereby AMENDED. The Clerk shall file the attached Amended Opinion and Amended Dissent.

A majority of the panel has voted to deny the petition for panel rehearing. Judge Kleinfeld would have granted the petition. Judge Wardlaw voted to deny the petition for rehearing en banc. Judge Pogue also so recommended. Judge Kle-infeld would have granted the petition.

The full court has been advised of the petition for rehearing en banc and no judge requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

OPINION

Samuel Arellano-Gallegos appeals his 51-month sentence imposed following his guilty plea to illegal re-entry after deportation in violation of 8 U.S.C. § 1326 (a). Arellano challenges the waiver provision in his plea agreement, and claims the district court erred by failing to acknowledge its discretion to depart downward pursuant to U.S.S.G. § 5K2.0. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a)(1), and we reverse.

I.

In…

concurring in part and dissenting in part:

I concur in Part I of the majority’s opinion and respectfully dissent from Part II.

The majority remands this appeal for resentencing because it is unsure whether the district court knew that the Sentencing Guidelines gave it the authority to depart downward. I see no reason to doubt that the district court judge knew this elementary and oft-arising area of law quite well. And the judge’s silence on whether he had authority to depart, is under controlling Ninth Circuit authority, the end of it.

*799 Here, the district court actually indicated its understanding of its authority to depart from the guidelines. In discussing possible sentences that might be imposed if the defendant again entered the United States illegally, the court stated, “And quite frankly, it’s going to get worse, not better. In fact, the sentencing commission is trying to take out any possible departures.” This quote indicates that the district court understood that it currently possessed authority to depart.

Further, in imposing sentence, the district court stated, “I’ll treat you as a criminal history category V, but the sentence is still going to be 51 months…