Lopez-Labastida

MEMORANDUM **

The United States appeals the sentence imposed on Salvador Lopez-Labastida following his guilty plea to being an alien present in the United States after deportation in violation of 8 U.S.C. § 1326 . We reverse.

I

We review the district court’s downward departure de novo under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 (PROTECT Act), even though this appeal was pending on the date the Act became *117 effective. 18 U.S.C. § 3742 (e)(4); United States v. Phillips, 356 F.3d 1076, 1092-93 (9th Cir.2004).

II

The government’s argument that its consent is required for a stipulation to deportation to be considered as a ground for departure is foreclosed by United States v. Rodriguez-Lopez, 198 F.3d 773, 778 (9th Cir.1999).

III

Rodriguez-Lopez also precludes us from accepting the government’s position that conceding deportation is categorically not outside the heartland. 198 F.3d at 776 (relying on United States v. Sanchez-Rodriguez, 161 F.3d 556, 560 (9th Cir.1998) (en banc) to hold that whether an unmentioned factor provides a basis for downward departure must be determined on the facts and circumstances of the…