United States v. Enrique Cruz-Ochoa

85 F.3d 325, 1996 WL 252279

Opinion

JUDGMENT

The above-entitled ease is set for oral argument as the third case on Tuesday, March 12,1996. It is hereby ORDERED:

1) The case be stricken from the calendar and dismissed.

2) Our review of the sentencing transcript and record before us leads us to conclude that the district court erred as a matter of law by incorrectly believing that it could not depart downward from the guide lines on the basis of defendant’s waiver and consent to administrative deportation upon the filing of a joint motion by the parties for a two-level downward departure at sentencing on defendant’s plea of guilty to illegal reentry.

3) The sentence is vacated and the case remanded for resentencing, so that the district court may consider whether departure is warranted. Whether a downward departure should be granted lies within the sound discretion of the district court. See U.S. v. Whitetail, 956 F.2d 857 (8th Cir.1992).