United States v. Jose Luis Lopez-Zamora

392 F.3d 1087 UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis LOPEZ-ZAMORA, Defendant-Appellant. No. 03-50304. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 14, 2004. Filed December 29, 2004. COPYRIGHT MATERIAL OMITTED Mazda K. Antia, Cooley Godward LLP, San Diego, CA, for the appellant. Kyle W. Hoffman and Karl A. Sandoval, U.S. Attorney's Office, San Diego, CA, for the appellee. Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-01-01918-JM. Before: TASHIMA, McKEOWN, and BYBEE, Circuit Judges. McKEOWN, Circuit Judge: 1 For the second time, Jose Luis Lopez-Zamora appeals his sentence for attempted entry into the United States after having been deported. Prior to Lopez-Zamora's second sentencing hearing, he sought downward departures on multiple grounds. The district court granted a downward departure for over-representation of criminal history. Lopez-Zamora contends that the district court erred by not recognizing its discretion to grant a separate departure based on the minor nature of the underlying offense. This argument implicates the inter-play…

For the second time, Jose Luis Lopez-Zamora appeals his sentence for attempted entry into the United States after having been deported. Prior to Lopez-Zamora’s second sentencing hearing, he sought downward departures on multiple grounds. The district court granted a downward departure for over-representation of criminal history. Lopez-Zamora contends that the district court erred by not recognizing its discretion to grant a separate departure based on the minor nature of the underlying offense. This argument implicates the inter-play among three versions of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 2L1.2(b)(l)(A) — the 1995, 1997, and 2001 versions. We must decide whether the 2001 Guideline amendments categorically forbid a district court from departing due to the minor nature of the underlying felony. We hold that they do not, but we affirm because the claimed error did not affect the sentence imposed.

I. Background

In 2001, Lopez-Zamora pled guilty to attempted reentry to the United States in violation of 8 U.S.C. § 1326 . Based on a prior conviction for selling methamphetamine to an undercover officer, Lopez-Zamora qualified for a 16-level…

concurring in the judgment.

I am unable to join the majority opinion because, in my view, the 2001 amendments to the Sentencing Guidelines squarely address Lopez-Zamora’s situation. The district court did not have discretion to grant the downward departure Lopez-Zamora sought and thus did not err when it declined to grant it. Hence, I agree with the majority that the judgment should be affirmed, but I disagree with the majority’s construction of the 2001 Amendments to § 2L1.2.

The 2001 amendments do not leave us the discretion the majority finds. The majority’s reading of the changes in the Commission’s instructions from the 1995 Guidelines to the 1997 Guidelines and the 2001 Guidelines follows a twisted path. I take a very different set of inferences from that history, so I am going to recap it here, showing where my perspective diverges from the majority.

Under the 1995 Guidelines, we were instructed to increase the base offense for unlawfully entering or remaining in the United States if the defendant was deported after conviction for a felony. Section 2L1.2 drew two distinctions: (1) if the defendant had been deported after an aggravated felony, increase the base offense…