Capi-Barajas

MEMORANDUM *

Ramon Capi-Barajas (“Capi-Barajas”) challenges his 57-month sentence for reentering the United States after deportation. On appeal, he contends that the District Court failed to recognize its discretion to depart downward based upon a unique mitigating circumstance. He also claims that the District Court erred in sentencing him to a term greater than two years in violation of Apprendi v. New Jersey, 580 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000). We do not recite the facts or procedural history of the case, except as necessary, because they are known to the parties. We have jurisdiction under 28 U.S.C. § 1291 , and we remand to the District Court for resentencing consistent with this disposition.

We lack jurisdiction to review a district court’s discretionary denial of a downward departure, but we have jurisdiction over an appeal where a district court states that it has no legal authority to depart downward. United States v. Smith, 330 F.3d 1209, 1212 (9th Cir.2003). At sentencing, Capi-Barajas asked for a downward departure on the ground that the administrative removal process did not adequately inform him of the consequences of returning to the United…