Chavez-Orozco

MEMORANDUM **

Luis Chavez-Orozco appeals his sentence for violation of 8 U.S.C. § 1326 on the grounds that: (1) the district court failed to comply with the findings requirements of Federal Rule of Criminal Procedure 32, and (2) the district court impermissibly denied Chavez-Orozco’s request for a downward departure. The Government cross-appeals the district court’s three-level downward departure as impermissibly infringing on prosecutorial discretion. We do not have jurisdiction to review the district court’s discretionary denial of a downward departure. 1 We have jurisdiction over the remaining claims pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291 , and we vacate the sentence and remand for resentencing.

Chavez-Orozco alleged a legal, not a factual, dispute. The district court was therefore not required to make express findings under Federal Rule of Criminal Procedure 32. 2 Accordingly, we reject Chavez-Orozco’s argument for vacating his sentence.

The district court’s three level departure impermissibly infringed on the prosecutor’s choice not to offer a new deal after the prior one had been rejected. 3 Accordingly, we vacate the sentence and remand for resentencing…