MEMORANDUM **

Trinidad Villasenor-Valdez pled guilty to illegally reentering the United States after having been deported following his conviction for an aggravated felony. At sentencing, he received a sixteen-level enhancement because of a prior conviction for statutory rape, but was granted an eight-level downward departure from the enhancement. The Government appeals from the court’s sentencing decision to grant a downward departure. It maintains that U.S.S.G. § 2L1.2(b)(l)(A) mandates the imposition of a sixteen-level enhancement. We affirm the sentencing decision, because the sentencing guidelines are not mandatory under United States v. Booker, — U.S. -, -, 125 S.Ct. 738, 757 , 160 L.Ed.2d 621 (2005).

Mr. Villasenor-Valdez pled guilty to illegally reentering the United States after having been deported following his conviction for an aggravated felony. At sentencing, he received a sixteen-level enhancement based on his prior conviction for statutory rape, a crime of violence. Mr. Villasenor-Valdez moved for a downward departure under U.S.S.G § 5k2.0. The Government opposed this motion, but the District Court granted an eight-level reduction. The Government challenges this reduction. “The interpretation and construction of statutes are questions of law reviewed de novo.” Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1041 (9th Cir.2001).

The Government argues that the District Court “render[ed] moot the sixteen level enhancement mandated by U.S.S.G. § 2L1.2(b)(l)(A) ...” when it departed *912 downward eight levels in this case. The Supreme Court ruled in Booker that the Sentencing Guidelines are not mandatory. Booker, 125 S.Ct. at 756-57 . Because this matter was pending on appeal when Booker was decided, this Court must apply that decision to this appeal. Griffith v. Kentucky, 479 U.S. 314, 322 , 107 S.Ct. 708 , 93 L.Ed.2d 649 (1987). Therefore, the Government’s argument that a higher sentence was “mandated” by the Guidelines has no merit after Booker .

AFFIRMED.

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