Leyva-Franco

MEMORANDUM **

Defendant-Appellee Oscar Guadalupe Leyva-Franco entered into a plea agreement and pled guilty to violating 21 U.S.C. §§ 952 (a), 960(a)(1), and 960(b)(1)(B)(ii). At sentencing, the district court granted Leyva-Franco a two-level “safety valve” reduction, a three-level acceptance of responsibility reduction, and a two-level role reduction. In addition, over the government’s objection, the district court granted Leyva-Franco a four-level downward departure for aberrant behavior. The district court imposed a sentence of 48 months in prison, followed by 60 months of supervised release. Leyva-Franco was released by the Bureau of Prisons after serving 48 months in prison. Following release, Leyva-Franco lost his resident alien status and was deported to Mexico on September 11, 2004.

The government again appeals the district court’s four-level departure for aberrant behavior in sentencing Leyva-Franco. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Section 5K2.20 of the United States Sentencing Guidelines Manual permits a district court to depart downward in sentencing if the defendant’s conduct was based on aberrant behavior. “[PJrior to departing downward…

Dissenting.

I dissent.

This defendant smuggled five kilograms or more of cocaine across the border. His sentence is around half of what similarly situated defendants ordinarily get. This case has come up on appeal twice before. Both times we vacated the sentence and mandated resentencing with findings. The district court has not complied with our mandate.

We held in a published opinion that the district court had to make a finding of fact as to whether it was true or false that the defendant had admitted smuggling drugs across the border before. The district court has still not made the finding. In its most recent iteration, the district court said in substance that it would not matter.

This is unsatisfactory for two reasons. First, it defies the mandate. When a case is remanded for resentencing, a district court has an absolute duty to comply with any instructions by the court of appeals. 1 Second, the burden is on the defendant to show that his behavior is aberrant, and he has not done so.

When this same district judge did substantially the same thing, imposing the same sentence three times in the face of repeated reversals, in United States v. Atondo-Santos, 2 we reversed…