United States v. Alberto Ruiz-Alonso, AKA Alberto Torrez-Ugaldo, AKA Alberto Torrez-Ugalde

In this illegal reentry case, the United States appeals the district court’s decision at sentencing to depart downward by four levels. Defendant Alberto Ruiz-Alonso seeks to dismiss the appeal because of the government’s alleged failure to demonstrate that it had “the personal approval of the Attorney General, the Solicitor General, or a deputy solicitor general designated by the Solicitor General” to proceed with this appeal, as required by 18 U.S.C. § 3742 (b).

Joining our sister circuits, we hold that 18 U.S.C. § 3742 (b) does not impose a jurisdictional requirement. See United States v. Zamudio, 314 F.3d 517, 519-20 (10th Cir.2002) (citing eases). So even if the government failed to obtain permission to proceed with this appeal, we have jurisdiction. We also hold that § 3742(b) survives United States v. Booker, — U.S. -, 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Having concluded that we have jurisdiction over the government’s appeal, we nevertheless vacate the district court’s sentence and remand for resentencing in accordance with Booker .

I. JURISDICTION

Title 18 U.S.C. § 3742 (b) authorizes the government to file a notice of appeal for review of a sentence imposed in a…