F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 16 2000 TENTH CIRCUIT PATRICK FISHER Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 99-6146 v. (D.C. No. CR-98-163-C) REYNALDO DE LA FUENTE- (W.D. Okla.) RAMOS,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR , Chief Judge, KELLY and HENRY , Circuit Judges.
Reynaldo De La Fuente-Ramos was convicted after a jury trial of eight
counts of transporting aliens who had entered and remained in the United States
illegally (violations of 8 U.S.C. § 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i)) and one
count of unlawful reentry into the United States (a violation of 8 U.S.C. § 1326).
Pursuant to § 2L1.2 of the United States Sentencing Guidelines, the district court
imposed a sixteen-level upward adjustment in the offense level because Mr. De
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. La Fuente had been previously convicted of an aggravated felony. It sentenced
him to concurrent fifty-seven month terms of imprisonment on each count,
followed by a two-year term of supervised release.
In this appeal, Mr. De La Fuente argues: (1) the district court erred in
denying his motion to suppress; (2) his 1988 conviction for importing marijuana
should not have been used to enhance his sentence; (3) the district court erred in
refusing to depart downward from the Guideline range; and (4) based on his
rehabilitative efforts following sentencing, he is now entitled to a downward
departure. For the reasons set forth below, we affirm Mr. De La Fuente’s
conviction and sentence.
I. BACKGROUND
At 1:45 a.m. on April 18, 1998, Oklahoma Highway Patrolman David Ross
observed a van traveling northbound on Interstate 35 near Hefner Road in
Oklahoma City. The van swerved toward the middle lane, and Trooper Ross
began to follow it. According to Trooper Ross’s affidavit (submitted by the
government at the district court hearing on Mr. De La Fuente’s motion to
suppress), he then observed “[t]he van weav[ing] from lane line to shoulder line
several times, touching three times.” See Rec. vol. I doc. 16, Ex. 1, at 1. At
trial, Trooper Ross gave a somewhat different account, stating that the van
2 “swerved across the lane line into the next lane and it also swerved onto the
shoulder line.” Rec. vol IV, at 41. When confronted with his affidavit on cross
examination at trial, Trooper Ross stated that the affidavit and his trial testimony
were consistent because “touching” the lane line and “swerving across the lane
line into the next lane” are “technically” the same thing. See id.
Trooper Ross followed the van and reported its license number to the
dispatcher. The dispatcher informed him that the van was registered to an
individual in Carrollton, Texas and had not been reported as stolen. Trooper Ross
then decided to stop the van to investigate possible drunken driving.
As he approached the van on the shoulder of the interstate, Trooper Ross
noticed at least a dozen Hispanic adults in the back. The driver, Raul Paradez,
produced a Texas driver’s license, but he could not produce a vehicle license and
registration. Trooper Ross then asked Mr. Paradez to accompany him to the
patrol car, where he relayed Mr. Paradez’s driver’s license information to the
dispatcher and began to question him.
Trooper Ross informed Mr. Paradez that he had been stopped because the
van was weaving. Mr. Paradez stated that he was tired and had been driving since
5:00 o’clock on the previous evening. He said that he did not have registration or
insurance because the van belonged to a company that was in the business of
“transporting people.” Rec doc. 16 Ex. 1, at 2. According to Trooper Ross, Mr.
3 Paradez was reluctant to provide information about his destination but eventually
said that the van was headed to St. Louis. Mr. Paradez also mentioned Chicago
and New York, but he did not explain which city he would travel to first. He
added that the passenger in the front seat, Mr. De La Fuente, also worked for the
company and might be able to provide information.
When asked about the people in the back of the van, Mr. Paradez said that
they were “just people they were giving a ride to.” Id at 3. He was unable to
explain how many of them were going to St. Louis or the other cities. He also
stated that all of the passengers had identification. When the trooper asked the
passengers if they had identification, none could provide it.
Trooper Ross requested another patrolman to come to the scene. About
twenty minutes after Trooper Ross first noticed the van, Lieutenant Barry Ross
arrived. The two troopers then approached the van and asked the passengers if
they had any identification. After the passengers stated that they had no
identification, Trooper Ross requested the dispatcher to report the stop to
Immigration and Naturalization Service (INS) officials. INS officials spoke to
Lieutenant Ross, and one of the passengers and then requested the two patrolmen
to escort the van to the INS office in Oklahoma City.
In September 1998, a federal grand jury indicted Mr. De La Fuente on ten
counts of transporting illegal aliens and one count of entering the United States
4 after having been deported. Mr. De La Fuente pleaded not guilty and filed a
motion to suppress the evidence discovered during the stop of the van. He
challenged the initial stop as well as the continuing roadside detention during
which the troopers asked questions about travel destinations and the identity of
the passengers.
The district court denied the motion to suppress, as well as Mr. De La
Fuente’s motion to reconsider the initial ruling. In its ruling on the motion to
reconsider, the court reasoned:
[Trooper Ross] reasonably believed the weaving of the van at [that] hour of the morning could have been due to illegal driving under the impairment of an intoxicant. Based upon the trooper’s observations of the passengers and their traveling conditions, combined with his 14 years of law enforcement experience, including at least eight encounters with vehicles smuggling illegal aliens, and the answers of the driver and defendant, the trooper possessed reasonable and articulable suspicion that illegal smuggling activity was present. Therefore, additional detention to investigate was not improper. To maintain defendant’s view, the Court would establish that an investigative stop for a traffic violation which yielded suspected criminal activity in plain view—but unrelated to the purpose of for the stop—could not be continued in order to investigate the nature of the suspected activity. This view is not, nor could it be, the law.
Rec. doc. 30, at 3 (District Court Order, filed Nov. 30, 1998).
Prior to trial, the government dismissed two of the transportation counts
with prejudice. The jury convicted Mr. De La Fuente on the remaining nine
5 counts.
In the sentencing proceedings, the government introduced a 1988
conviction in the United States District Court for the Southern District of Texas
for importing approximately twelve pounds of marijuana. The government argued
that this conviction constituted an aggravated felony under USSG §
2L1.2(b)(1)(A) and therefore warranted a sixteen level upward adjustment in the
offense level. The district court overruled Mr. De La Fuente’s objection to the
upward adjustment. Although acknowledging that the commentary to USSG §
2L1.2(b)(1)(A) authorized a downward departure, the court concluded that Mr. De
La Fuente’s admission that he had transported illegal aliens on three prior
occasions indicated that departure was not warranted. However, the court did
impose a sentence at the low end of the Guideline range: concurrent fifty-seven
month terms of imprisonment, followed by concurrent two year terms of
supervised release.
II DISCUSSION
A. Motion to Suppress
Mr. De La Fuente challenges the denial of his motion to suppress on two
grounds. First, he argues that Trooper Ross lacked a reasonable suspicion that he
had violated a traffic law. Second, he challenges the scope of Trooper and
6 Lieutenant Ross’s subsequent interrogation. He maintains that, because there was
no evidence that the van was stolen, the patrolmen violated his Fourth
Amendment rights when they asked about travel plans and the identity of the
passengers in the back of a van.
In considering the district court’s denial of the defendant’s motion to
suppress, the district court’s ultimate determination of Fourth Amendment
reasonableness is subject to de novo review. United States v. Little, 60 F.3d 708,
712 (10th Cir.1995). We accept the district court’s findings of fact unless clearly
erroneous and consider the evidence in a light most favorable to the government.
United States v. Elliott, 107 F.3d 810, 813 (10th Cir.1997).
A routine traffic stop constitutes a seizure under the Fourth Amendment.
United States v. West, 219 F.3d 1171, 1175 (10th Cir. 2000). Our cases
characterize such stops as investigative detentions and assess their reasonableness
under the standards set forth in Terry v. Ohio, 392 U.S. 1, 19-20 (1968). We thus
make a dual inquiry, asking: (1) whether the stop was “justified at its inception;”
and (2) “whether it was reasonably related in scope to the circumstances which
justified the interference in the first place.” Terry, 392 U.S. at 20.
As to the first inquiry, a traffic stop is valid under the Fourth Amendment
“if based on an observed traffic violation or if an officer has a reasonable
articulable suspicion that a traffic or equipment violation has occurred or is
7 occurring.” United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en
banc). The officer’s subjective motives for stopping the vehicle are irrelevant.
See id.; accord Whren v. United States, 517 U.S. 806, 813 (1996) (stating that
“we have been unwilling to entertain Fourth Amendment challenges based on the
actual motivations of individual officers”).
As to the second inquiry, our cases hold that the officer conducting the stop
may request vehicle registration and a driver’s license, run a computer check, and
issue a citation. United States v. Hunnicutt, 135 F.3d at 1345, 1349 (10th Cir.
1998). He or she may also ask about “travel plans . . . and the ownership of the
car.” United States v. Rivera, 867 F.2d 1261, 1263 (10th Cir.1989). However,
after the officer has issued the citation and the driver has produced “a valid
license and proof that he is entitled to operate the car, he must be allowed to
proceed on his way without being subject to further delay by police for additional
questioning.” United States v. Lee, 73 F.3d 1034, 1039 (10th Cir.1996) (citations
omitted). In two circumstances, the officer may engage in additional questioning:
(1) if he or she “has an objectively reasonable and articulable suspicion that
illegal activity has occurred or is occurring;” (2) if the subject of the additional
interrogation consents to it. United States v. Gonzalez-Lerma, 14 F.3d 1479,
1483 (10th Cir.1994) (citation omitted).
8 1. The initial stop
Mr. De La Fuente argues that Trooper Ross’s observations of the van
weaving within its lane were insufficient to justify the initial traffic stop. In
support of this argument, he invokes an Oklahoma statute, a decision of the
Oklahoma Court of Criminal Appeals, and several of our prior decisions.
The Oklahoma statute on which Mr. De La Fuente relies, 47 Okla . Stat. §
11-309, provides that “[w]henever any roadway has been divided into two or more
clearly marked lanes for traffic . . .[a] vehicle shall be driven as nearly as
practicable entirely within a single lane. Shirley v. State, 321 P.2d 981 (Okla.
Crim. App. 1957), involves police officers’ stop of a car on the basis of “a slight
weaving motion not completely from one lane to the other.” Id. at 986. The
Oklahoma Court of Criminal Appeals reversed the defendant’s conviction for
driving a motor vehicle under the influence of intoxicating liquor, stating that
from the record it “was unable to ascertain the violation of any the statutes of this
state.” Id. It noted that “[i]t is not uncommon for automobiles traveling a four
lane highway with two lanes reserved for each direction to drive in one or the
other and certainly does not violate any of the state’s laws to be in the left lane
next to the median for purposes of preparing to pass a vehicle or for the purposes
of turning.” Id. The Shirley court did not address the Oklahoma statute requiring
vehicles to be driven “as nearly as practicable entirely within a single lane” (47
9 Okla . Stat. § 11-309) nor did it address the question of whether the officers had
the reasonable suspicion necessary to make the initial stop under the Terry
standard.
Nevertheless, the Tenth Circuit decisions on which Mr. De La Fuente relies
have directly addressed the validity of traffic stops for weaving within a lane. In
United States v. Lyons, 7 F.3d 973 (10th Cir. 1993), the court assessed the
validity of a stop based on the officer’s observation that a pickup truck had
“weave[d] three to four times within its lane of the divided highway.” Id. at 974.
Applying our prior decision in United States v. Guzman, 864 F.2d 1512, 1515
(10th Cir. 1988), the Lyons court inquired whether “a reasonable officer would
have made the stop in the absence of the invalid purpose.” Lyons, 7 F.3d at 975
(citing Guzman, 864 F.2d at 1517). 1 The court concluded that a reasonable
officer would not have made the stop. It criticized the officer’s reliance on
within-the-lane weaving as a justification for the stop:
1 Guzman has since been overruled by our decision in United States v. Botero-Ospina, 71 F.3d 783, 785 (10th Cir.1995) (en banc). We there concluded that “a traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if the police officer has reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring.” We further stated that several factors considered under the Guzman approach were irrelevant to determining reasonableness under the Fourth Amendment: “whether the stop was sufficiently ordinary or routine according to the general practice of the police department or the particular officer making the stop” and whether “the officer may have had other subjective motives for stopping the vehicle.” Id.
10 We also believe [the officer’s] admissions concerning the universality of drivers’ “weaving” in their lanes and the commonness of people’s avoiding eye contact with police officers while driving significantly undercut the rationality of using these factors as objective reasons for the legitimacy of the stop. Indeed, if failure to follow a perfect vector down the highway or keeping one’s eyes on the road were sufficient reasons to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of their privacy.
Id. at 976. The Lyons court added that the officer’s failure to make any effort to
determine the driver’s sobriety after effecting the stop provided an additional
reason for questioning the officer’s motive.
We reached a similar conclusion in United States v. Gregory, 79 F.3d 973
(10th Cir. 1996). There, an officer observed one instance in which a truck
“cross[ed] two feet into the right shoulder emergency lane of [an] interstate [in
Utah].” Id. at 975-76. Utah has a weaving statute similar to Oklahoma’s. See Id
at 978 (quoting Utah Code Ann. § 41-6-61(1)). The court concluded, however,
that the officer had failed to establish a reasonable suspicion to make the stop on
the basis of the weaving statute:
We do not find that an isolated incident of a vehicle crossing into the emergency lane of a roadway is a violation of Utah law. This interpretation of Utah law has been followed by the Utah courts. . . . We agree with the Utah court which noted that the statute requires only that the vehicle remain entirely in a single lane “as nearly as practical.” The road was winding, the terrain mountainous and the weather condition was windy.
11 Under these conditions any vehicle could be subject to an isolated incident of moving into the right shoulder of the roadway, without giving rise to a suspicion of criminal activity. The driver may have decided to pull over to check his vehicle and then have a sudden change of mind and pulled back into the traffic lane. Since the movement of the vehicle occurred toward the right shoulder, other traffic was in no danger of collision. These facts lead us to conclude that the single occurrence of moving to the right shoulder of the roadway which was observed by [the officer] could not constitute a violation of Utah law and therefore does not warrant the invasion of Fourth Amendment protection.
Gregory, 79 F.3d at 978 (citations omitted). The court also found that the officer
lacked a reasonable suspicion that the driver was fatigued. Id. (“[D]riving while
fatigued is not criminal activity and only if a driver is extremely fatigued can the
condition constitute a danger to public safety.”).
According to Mr. De La Fuente, Trooper Ross’s observations were
insufficient to establish a failure to drive the van “as nearly as practicable entirely
within a single lane.” See 47 Okla . Stat. § 11-309. He further argues that
Shirley, Lyons, and Gregory establish that Trooper Ross lacked the reasonable
suspicion necessary to justify the traffic stop under the Fourth Amendment.
We are not persuaded by this argument. Although the contrast between
Trooper Ross’s affidavit and his trial testimony suggests that he may have
exaggerated the extent of the van’s weaving in the later instance, even the lesser
degree of weaving described in the affidavit (i.e., the van’s touching the lane line
12 three times, see Rec. vol. I doc. 16, Ex. 1, at 1), supports the district court’s
conclusion that Trooper Ross possessed the necessary reasonable suspicion to
make the initial stop of the van. As we noted in Gregory, one instance of weaving
may be insufficient to establish that a vehicle is not being driven “as nearly as
practicable” within a single lane. See Utah Code Ann. § 41-6-61(1)); 47 Okla .
Stat. § 11-309. However, there was more than one instance of such weaving here.
More importantly, in this case the government has not asserted that Trooper
Ross’s observations establish a violation of the Oklahoma weaving statute.
Instead, the government argues that the three instances of weaving observed by
Trooper Ross gave rise to a reasonable suspicion that the driver of the van was
fatigued or impaired. See Aplee’s Supp. Br. at 11-13. That argument is
foreclosed by neither Lyons nor Gregory.
As we have noted, Lyons’s conclusion that officer’s stop of the vehicle
violated the Fourth Amendment was based on a standard that examined the
officer’s motive and that has since been overruled. See Botero-Ospina, 71 F.3d at
785. Moreover, there is no indication in our opinion in Lyons that the vehicle in
question there actually touched the lane line, as did the van here. Compare
Lyons, 7 F.3d at 974 (noting that the vehicle “weave[d] three of four times within
its lane of the divided highway” with Trooper Ross’s affidavit. Rec. vol. I doc.
13 16, Ex. 1, at 1 (stating that the van touched the lane line three times). Similarly,
the facts of Gregory are distinguishable, as they involve only one instance of a
vehicle weaving outside of its lane and road and weather conditions that could
have caused even an unimpaired motorist to weave. See Gregory, 79 F.3d at 978.
(“The road was winding, the terrain mountainous and the weather condition was
windy.”).
Moreover, in a post- Botero-Ospina case involving circumstances analogous
to those at issue here, this circuit has concluded that an officer possessed
reasonable suspicion necessary to justify the stop of a motorist. In United States
v. Ozbirn , 189 F.3d 1194, 1196 (10th Cir. 1999), the officer observed a mobile
home “drift onto the shoulder twice in less than a quarter mile.” Noting that, in
contrast to Gregory , the weather and road conditions were optimal, the court
concluded that the officer possessed probable cause necessary to justify the stop
for a violation of the Kansas weaving statute, see id. at 1198 (citing Kan. Stat.
Ann. § 8-1522) , and that the officer had a reasonable suspicion that the driver
was impaired, see id. at 1199.
Just as the officer in Ozbirn , Trooper Ross observed the van weaving on
more than one occasion. As in Ozbirn , the weaving was not solely within the
lane. Accordingly, Trooper Ross’s observations provided him with a reasonable
suspicion that the driver of the van was impaired. Thus, the district court
14 properly concluded that the initial stop of the van was reasonable under the
Fourth Amendment.
2. The Continuing Detention
In his pro se appellate brief, Mr. De La Fuente also challenges Trooper and
Lieutenant Ross’s continuing detention of the van and its occupants to ask about
their travel plans and their identity. He further contends that his statements to
the troopers should be suppressed as fruit of the poisonous tree—the unlawful
detention.
Mr. De La Fuente’s challenge to the detention is undermined by
established circuit law. We have held that an officer making a traffic stop may
ask about travel plans and ownership of the vehicle, see Rivera , 867 F.2d at
1263, and that, if the driver and the passenger are unable to produce a valid
registration, a reasonable suspicion arises that the vehicle may be stolen, thereby
justifying further inquiry, see United States v. Fernandez, 18 F.3d 874, 879 (10th
Cir.1994) (“[A] defining characteristic of our traffic stop jurisprudence is [that]
the defendant’s lack of a valid registration, license, bill of sale, or some other
indicia of proof to lawfully operate and possess the vehicle in question . . .
giv[es] rise to objectively reasonable suspicion that the vehicle may be stolen.”).
As the government notes, Trooper Ross’s questioning of Mr. Paradez
15 continued after he was unable to produce either a valid registration or an
explanation of why he did not have the required documents and as he awaited the
results of the driver’s license check. Trooper Ross began his questioning of the
passengers in the rear of the van only after Mr. Paradez provided varying
explanations of the van’s initial destination and appeared unable to provide
information about the passengers’ destination. At that point, Trooper Ross was
confronted with not only Mr. Paradez’s varying explanations of the van’s
destination but also with his statement that the company for which he worked was
in the business of “transporting people,” and the presence of at least a dozen
adults in the van. Those circumstances provided Trooper Ross with a reasonable
suspicion of an immigration violation, thus warranting further inquiry. See
United States v. Galindo-Gonzales , 142 F.3d 1217, 1224 (10th Cir. 1998)
(concluding that the failure to produce registration papers at a border checkpoint
provided justification for questions about the identity of the passengers);
Gonzalez-Lerma , 14 F.3d at 1483 (stating that an officer’s “objectively
reasonable and articulable suspicion that illegal activity has occurred or is
occurring” justifies additional questioning). In light of the passengers’
subsequent statements that they were unable to provide identification, the
continuing detention after Lieutenant Ross arrived was similarly justified. Thus,
the district court properly rejected Mr. De La Fuente’s Fourth Amendment
16 challenge to the scope of his detention.
B. Mr. De La Fuente’s Prior Conviction
Mr. De La Fuente challenges on two grounds the district court’s use of a
1988 federal court conviction for importing marijuana. First, he argues that the
conviction does not constitute an “aggravated felony” under 8 U.S.C. §
1326(b)(2). He then contends that the district court erred in applying the
definition of an “aggravated felony” that was not in effect at the time of the prior
conviction. These arguments are not supported by the law of this circuit.
Under § 1326(b)(2), a longer sentence may be imposed upon an alien who
reenters the United States after a conviction of “an aggravated felony” (i.e.,
imprisonment not more than twenty years, compared to imprisonment for not
more than ten years for unlawful reentry after three or more misdemeanor
convictions and imprisonment for not more than two years for unlawful reentry
absent a criminal record). The definition of an “aggravated felony” set forth in 8
U.S.C. § 1101(a)(43) includes “illicit trafficking in a controlled substance (as
defined in section 802 of Title 21), including a drug trafficking crime (as defined
in section 924(c) of Title 18).” 8 U.S.C. § 1101(a)(43)(B), In turn, 18 U.S.C. §
924(c) defines a drug trafficking crime to include “any felony punishable under
the Controlled Substance Import and Export Act (21 U.S.C. § 951 et seq.).” 18
17 U.S.C. § 924(c)(2).
That definition of a “drug trafficking crime” defeats Mr. De La Fuente’s
first challenge to the prior conviction. As the government notes, the importation
of marijuana is punishable under the Controlled Substance Import and Export
Act, particularly 21 U.S.C. § 952. Thus, the district court properly concluded
that Mr. De La Fuente had been convicted of a drug trafficking crime.
Mr. De La Fuente’s second challenge (based on the retroactive application
of the definition of an “aggravated felony”) is foreclosed by this circuit’s
decision in United States v. Aranda-Hernandez , 95 F.3d 977 (10th Cir. 1996).
There, we held that the § 1326(b)(2) aggravated felony enhancement applies to
“all past aggravated felonies, regardless of the date committed.” Id. at 983. We
explained that the definition of the term “aggravated felony” that should be
applied to a particular case is the definition in effect at the time of the unlawful
reentry, rather than the definition in effect at the time the aggravated felony was
committed. Application of the sentencing enhancement to past aggravated
felonies does not violate the Ex Post Facto Clause because the act being punished
is the reentry rather than the original felony. Id. We therefore conclude that the
district court properly relied on Mr. De La Fuente’s prior conviction for
importing marijuana in increasing his sentence.
18 C. Refusal to Depart Downward
Next, Mr. De La Fuente challenges the district court’s refusal to depart
downward from the Guideline sentencing range. His argument for downward
departure is based on Application Note 5 to USSG § 2L1.2
Section 2L1.2 sets the offense level for unlawful entry or remaining in the
United States. Section 2L1.2(a) provides for a sixteen level increase in the
offense level if the defendant has been convicted of an aggravated felony.
Section 2L1.2(b) provides for a four-level increase if the prior conviction was for
“any other felony” or if the defendant has three or more prior misdemeanor
convictions involving crimes of violence or controlled substance offenses.
Application Note 5 explains that “the [relative lack of] seriousness of the
aggravated felony” may justify a downward departure:
Aggravated felonies that trigger the adjustment from subsection (b)(1)(A) vary widely. If subsection (b)(1)(A) applies and (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or firearms offense; and (C) the term of imprisonment imposed for such offense did not exceed one year, a downward departure may be warranted based on the seriousness of the aggravated felony.
USSG 2L1.2 comment. n. 5.
As a general rule, as long as the district court understood its authority to
depart downward from the Guidelines, we lack authority to review its refusal to
do so. United States v. Fagin , 162 F.3d 1280, 1282 (10th Cir.1998) (“It is well
19 settled that an appellate court lacks jurisdiction to review a sentencing court’s
refusal to depart from the Sentencing Guidelines when the sentencing court was
aware that it had the authority to depart but declined to exercise that authority
and grant the departure.”).
Here, the district court’s remarks at sentencing indicate that it properly
understood its authority:
The departure, under Application Note 5, is discretionary. It is not mandated by the guidelines. It’s simply suggested that the prior aggravated felony, if not as serious as the others, might be considered as a reason for departure. I think it is a logical conclusion. However, in this case, it ignores the fact that Mr. De La Fuente has admitted to at least three previous acts of smuggling unlawful aliens. That admission is totally disregarded in any calculation under the guidelines and I think that is inappropriate. I think it should be regarded. It should be taken into account and I will take it into account by declining to depart downward based on the relative lack of seriousness of the previous aggravated felony.
Rec. vol. VII at 8-9 (Tr. of March 23, 1999 sentencing). Accordingly, we lack
jurisdiction to review the district court’s refusal to depart downward from the
Guideline range.
D. Requested Downward Departure Based on Post-Sentencing Rehabilitative Efforts
Mr. De La Fuente also argues that he is entitled to a downward departure
based on the fact that he has “undergone a series of social, educational Christian
20 instructive programs that have unequivocally enhanced his self improvement”
and that he has “dissociated himself from any nefarious activities and does not
have any affiliation with any criminal enterprise or persons.” Aplt’s Pro Se Br. at
20.
In United States v. Warner , 43 F.3d 1335, 1340 (10th Cir.1994), we held
that, even in an instance in which a case is remanded for resentencing, conduct of
a defendant occurring after the original sentencing proceeding may not be
considered by the district court as a basis for downward departure at the second
sentencing proceeding. The cases on which Mr. De La Fuente relies do not
contradict Warner : they involve rehabilitative efforts occurring after the
commission of the offense but before the initial sentencing. See, e.g. , United
States v. Maier , 975 F.2d 944 (2d Cir. 1992) (concluding that defendant’s post-
offense, pre-sentencing rehabilitative efforts warranted downward departure);
United States v. Harrington , 947 F.2d 956 (D.C. Cir. 1991) (same); see also
United States v. Whitaker , 152 F.3d 1238, 1240 (10th Cir.1998) (holding that
post-offense rehabilitative efforts “may provide a basis for departure”).
Post-sentencing factors warranting sentencing modification are addressed
by a federal statute, 18 U.S.C. § 3582 (c)(1). Section 3582 authorizes the
Director of Prisons to file a motion seeking a reduction of imprisonment with the
district court based on certain factors. There is no indication that the Director of
21 Prisons has filed such a motion here, and a downward departure based on Mr. De
La Fuente’s post-sentencing conduct is thus not warranted.
E. Apprendi v. New Jersey
Finally , in a second supplemental brief, Mr. De La Fuente argues that the
Surpeme Court’s decision in Apprendi v. New Jersey , 120 S. Ct. 2348 (2000)
indicates that the district court erred by failing to instruct the jury that it must
find beyond a reasonable doubt that he had been convicted of an aggravated
felony. Mr. De La Fuente acknowledges that his argument is foreclosed by the
Supreme Court’s prior decision in Almendez-Torres v United States , 523 U.S.
224 (1998).
The Supreme Court there held that 8 U.S.C. § 1326(b)(2) is a penalty
provision that authorizes an enhanced sentence and that the government is not
required to charge the fact of an earlier conviction in the indictment. However,
as Mr. De La Fuente observes, one of the justices in the Almendez-Torres
majority stated in a concurrence in Apprendi that the earlier case was incorrectly
decided. See Apprendi , 120 S. Ct. at 2379 (Thomas, J., concurring).
Almendez-Torres has not been overrruled, and we are bound to follow it.
Indeed, Mr. De La Fuente acknowledges that “relief is currently foreclosed in
this court” and that he has raised the argument “in order to preserve his claim for
22 review by the United States Supreme Court.” Aplt’s Second Supp. Br. at 2. We
therefore reject Mr. De La Fuente’s Apprendi -based challenge to his conviction
and sentence.
III. CONCLUSION
We DISMISS for lack of jurisdiction Mr. De La Fuente’s appeal of the
district court’s refusal to depart downward from the Guideline range. We
AFFIRM the district court’s denial of Mr. De La Fuente’s motion to suppress, as
well as his convictions and sentences.
Entered for the Court
Robert H. Henry Circuit Judge