United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    REVISED SEPTEMBER 24, 2004
                                                              September 9, 2004
              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                 --------------------------------                  Clerk
                            No. 03-20960
                 --------------------------------

UNITED STATES OF AMERICA,

                            Plaintiff - Appellee

v.

DANIEL BARRERA-SAUCEDO,

                            Defendant - Appellant


          Appeal from the United States District Court
               for the Southern District of Texas


Before BARKSDALE and PICKERING, Circuit Judges, and LYNN,*

District Judge.

LYNN, J: District Judge

     Appellant Daniel Barrera-Saucedo appeals the district

court’s sentence on two grounds.       The first ground is that the

district court erred in concluding that it had no authority to

depart downward for the time Barrera-Saucedo had served in state

custody after immigration authorities found him.       The second

ground is that the “felony” and “aggravated felony” provisions

found at 8 U.S.C. § 1326(b)(1) and (b)(2) are facially

unconstitutional.   Finding error as to the first ground, we


     *
      District Judge for the Northern District of Texas, sitting
by designation.

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vacate the sentence and remand this case for the limited purpose

of allowing the trial court to apply the law now stated, to

determine whether Barrera-Saucedo is entitled to an additional

downward departure for time spent in state custody.

                       I. FACTS AND PROCEDURE

     Daniel Barrera-Saucedo is a citizen of Mexico.   On November

10, 1998, after serving a state term of imprisonment, Barrera-

Saucedo was deported from Texas to Mexico.   He later returned to

the United States and was again arrested, prosecuted, and

convicted.   While serving time in state prison for two drug

related offenses and criminal mischief, on June 4, 2002,

immigration authorities located Barrera-Saucedo in the Texas

Department of Criminal Justice - Institutional Division in

Huntsville, Texas.   However, Barrera-Saucedo was not released to

immigration authorities until March 26, 2003, and was not placed

in the custody of the United States Marshals Service until May 9,

2003.   On June 13, 2003, Barrera-Saucedo pled guilty to illegal

re-entry after deportation.

     At sentencing, Barrera-Saucedo moved for a downward

departure on three grounds: (1) special family circumstances; (2)

time served in state custody after he was found by immigration

authorities on June 4, 2002; and (3) time served in INS custody

between March 26, 2003 and May 9, 2003.   The district court

declined to grant a departure for family circumstances but



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granted Barrera-Saucedo’s request for credit for the forty-four

days he spent in INS custody.    In response to the downward

departure motion for time Barrera-Saucedo spent in state custody,

the district court stated: “I think that I am prohibited from

giving credit for the time that Mr. Barrera-Saucedo was in state

custody serving his state sentence.”      When imposing the sentence,

the district court also stated:

            if the Bureau of Prisons for any reason
            decides to release prisoners early, I
            recommend that they do so in this case. I
            don’t think that the crimes that were
            committed are much more than a person trying
            to support a drug habit.

The court sentenced Barrera-Saucedo to forty-six months

imprisonment, less the days he spent in INS custody, for a total

of forty-four months and sixteen days.

                       II. STANDARD OF REVIEW

     This Court reviews a district court’s application of the

Sentencing Guidelines de novo, but its factual findings for clear

error. United States v. Rivera, 

, 311 (5th Cir.

2001).    The Guidelines authorize district courts to depart in

cases that feature aggravating or mitigating circumstances of a

kind or degree not adequately taken into consideration by the

Sentencing Commission.    Koon v. United States, 

, 94

(1996).    Whether a particular factor is a permissible basis for

departure is a question of law.       

  This Court has

jurisdiction to review a district court’s refusal to grant a

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downward departure from the Guidelines only if the refusal was

based on an error of law.     United States v. Buck, 

,

797 (5th Cir. 2003).    Thus, this Court may review the district

court’s decision only if it refused a downward departure on the

mistaken conclusion that the Guidelines do not permit such a

departure.   

                            III. DISCUSSION

     Barrera-Saucedo appeals the district court’s sentence on two

grounds.   First, Barrera-Saucedo argues the district court erred

in concluding that it had no authority to downwardly depart for

the time Barrera-Saucedo had served on a state sentence after

being discovered by immigration authorities.    Second, Barrera-

Saucedo contends that the “felony” and “aggravated felony”

provisions found at    8 U.S.C. § 1326(b)(1) and (b)(2) are

facially unconstitutional.

     A.    Downward Departure

     There is no statutory authority for district courts to award

credit against federal sentences for time spent in state custody.

See United States v. Wilson, 

, 333-37 (1992).     To the

contrary, Congress has granted such authority to the Attorney

General, through the Bureau of Prisons, pursuant to 18 U.S.C. §

3585(b).

     Although a sentencing court may not give credit for time

served in state custody, this Court has not yet addressed the


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issue of whether a court may downwardly depart for time served.

Though an issue of first impression in the Fifth Circuit, both

the Second and Ninth Circuits have held that a downward departure

may be appropriate on such ground. Specifically, both circuits

have held that a downward departure may be granted based on a

defendant’s lost opportunity to serve his federal sentence

concurrently with his state sentence due to the delay in

commencing federal proceedings after the defendant is discovered

by immigration authorities in state custody.    See United States

v. Los Santos, 

, 428-29 (2d Cir. 2002); United States

v. Sanchez-Rodriquez, 

, 564 (9th Cir. 1998) (en

banc).   The First Circuit has also suggested that such a

departure may be appropriate.   See United States v. Saldana, 

, 104-05 (1st Cir. 1997).    We have found no decisions

holding that a departure on such grounds is impermissible.

     A district court cannot depart from the Guidelines, however,

unless it first finds, on the record, that the facts or

circumstances of a case remove that case from the heartland of

typical cases.   United States v. Winters, 

, 482 (5th

Cir. 1999).   Where the factor at issue is not mentioned in the

Guidelines, the sentencing court must, after considering the

structure and theory of both relevant individual guidelines and

the Guidelines as a whole, decide whether it is sufficient to

take the case out of the Guidelines’ heartland, bearing in mind


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that departures based on grounds not mentioned in the Guidelines

will be highly infrequent.     

(citing 1995

U.S.S.G. ch. 1, pt. A, p.6).

     Here, it is unclear from the record whether the district

court would have been inclined to grant a further downward

departure based on Barrera-Saucedo’s time spent in state custody,

because the district court believed it did not have a legal basis

for departure.    Thus, the district court did not conduct a

heartland analysis with respect to the time spent in state

custody.

     The Supreme Court has held that, if “the district court

misapplied the Guidelines, a remand is appropriate unless the

reviewing court concludes, on the record as a whole, . . . that

the error did not affect the district court’s selection of the

sentenced imposed.”    Williams v. United States, 

, 203

(1993).    The district court’s comments at sentencing did not

reveal whether it would have departed had it known that it could

do so to compensate Barrera-Saucedo for his lost opportunity to

serve his state and federal sentences concurrently.    However, the

district court’s suggestion that the Bureau of Prisons consider

releasing Barrera-Saucedo early suggests that the district court

indeed might have considered departure had the court believed a

departure on such basis was an option.

     We now hold that it is permissible for a sentencing court to


                                   6
grant a downward departure to an illegal alien for all or part of

time served in state custody from the time immigration

authorities locate the defendant until he is taken into federal

custody.   The Ninth and Second Circuits disagree on the

circumstances under which such a downward departure might be

appropriate.   The Second Circuit has held that for a district

court to depart based on prosecutorial delay that resulted in a

lost opportunity to serve state and federal sentences

concurrently, the delay in federal prosecution must have been in

bad faith or unreasonable.   Los 

.    The

Ninth Circuit, in contrast, has held that a defendant need not

demonstrate that the Government acted in bad faith and that

departure may be appropriate even in a case of innocent delay.

.   We concur with the analysis

of the Ninth Circuit, and conclude that a delay after the

defendant is found in state custody may be a factor in the

district court’s analysis of whether a downward departure is

warranted by the facts, and, if so, to what extent.

     Applying these principles to the case at bar, because the

district court believed it was prohibited from considering

Barrera-Saucedo’s motion for downward departure based on time he

served in state custody after he was found, and because we have

now held that the court was not so prohibited, the district

court’s sentence is vacated, and this case is remanded for the


                                 7
limited purpose of allowing the district court to determine

whether the defendant is entitled to a downward departure for all

or part of the time he spent in state custody after he was

located by immigration authorities.

     B.   Constitutionality of 8 U.S.C. § 1326(b)

     Barrera-Saucedo argues that the “felony” and “aggravated

felony” provisions of 8 U.S.C. § 1326(b) are unconstitutional.

The Supreme Court held in Almendarez-Torres that Congress

intended the fact of a prior “felony” or “aggravated felony” to

be a sentence enhancement provable to a judge at sentencing, by a

preponderance of the evidence, rather than an element to be

charged in the indictment and proved to a jury beyond a

reasonable doubt.    See Almendarez-Torres v. United States, 

, 235 (1998).   Barrera-Saucedo contends that in light of

Apprendi, it now appears that a majority of the Supreme Court

believes such a scheme is unconstitutional.    See Apprendi v. New

Jersey, 

(2000); see also Blakely v. Washington, 

(2004); see also United States v. Pineiro, 

(5th Cir. 2004).   However, as appellant

concedes, this contention is foreclosed by prior Fifth Circuit

precedent.    See United States v. Dabeit, 

, 984 (5th

Cir. 2000).




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                         IV. CONCLUSION

     For the foregoing reasons, the sentence of the district

court is VACATED, and the Court REMANDS this case for the limited

purpose of allowing the trial court to determine whether Barrera-

Saucedo is entitled to a downward departure for time spent in

state custody after the date when he was located by immigration

authorities.




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