[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                     For the First Circuit


No. 01-2465

                         UNITED STATES,

                            Appellee,

                                v.

                BELKIS ALTAGRACIA ORTIZ-DE MUNDO,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Juan M. Pérez-Giménez, U.S. District Judge]


                             Before

                       Lynch, Circuit Judge,
                   Cyr, Senior Circuit Judge,
                    and Lipez, Circuit Judge.



     Joseph C. Laws, Jr., Federal Public Defender, and Yasmin A.
Irizarry, Assistant Federal Public Defender, on brief for
appellant.
     H.S. Garcia, United States Attorney, Sonia I. Torres-Pabon,
Assistant United States Attorney, and Nelson Perez-Sosa, Assistant
United States Attorney, on brief for appellee.



                        December 9, 2002
       Per Curiam.    Defendant-appellant Belkis Altagracia Ortiz-De

Mundo appeals from the district court's refusal to grant a downward

departure pursuant to U.S.S.G. § 2L1.2, Application Note 5 (2000).

The government argues that this             court lacks jurisdiction to

review the sentencing court's refusal to grant the departure

because it was merely an exercise of its discretion.           "[A]n appeal

lies if the departure decision is based on an assessment that the

sentencing court is powerless to depart on the grounds alleged by

the proponent, but not if the court simply declines to exercise its

discretionary power to depart." United States v. Morrison, 

, 130 (1st Cir. 1995)(emphasis in original).

       "When determining whether the sentencing court merely refused

to exercise its discretionary power to depart, we consider the

totality of the record and the sentencing court's actions as

reflected therein." 

of the sentencing hearing

clearly   indicates    that   the    sentencing   court   believed    that   a

departure was impermissible under § 2L1.2 because one of the

requirements of Application Note 5 (concerning length of the

sentence imposed for the previous conviction) had not been met.

Its ambiguous statement that "if I don't exercise it, there would

still be no question about it," absent any reference to facts which

made such a departure unjustified in this case, does not deprive

this court of jurisdiction. Compare United States v. Jackson, 

,   338   (7th   Cir.    1996)   (holding   that   court   lacked

jurisdiction "where the district court unambiguously indicates that

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it would not depart from the sentence, even if it had authority to

do so") (emphasis added). We find that this court has jurisdiction

to   review     the   district       court's    determination       that   it   lacked

authority to depart pursuant to § 2L1.2, Application Note 5.

       Application       Note    5    permits    a    downward     departure    if    §

2L1.2(b)(1)(A) applies and three other requirements are met.                         The

PSR in this case indicates that the relevant subsection applied and

that all three of the other requirements of Application Note 5 were

met.       The district court erred in concluding that the requirement

that the term of imprisonment imposed for the aggravated felony

which triggered the 16-level increase under subsection (b)(1)(A)

"not exceed one year" was not met in this case.                    The PSR indicates

(and the district court found) that the relevant prison sentence

imposed      was   one   year.       Therefore,       the    sentencing    court     had

authority to grant a departure from the guideline sentencing range

pursuant to Application Note 5 "based on the seriousness of the

aggravated felony." § 2L1.2, comment. (n.5). Its conclusion to the

contrary was erroneous.

       The    sentence    is     vacated   and       the    case   is   remanded   for

resentencing.1 See Loc.R. 27(c).




       1
       We note that on remand for resentencing the current
Sentencing Guidelines, including the amended version of § 2L1.2,
apply. See, e.g., United States v. Kirkham, 

, 132 n.5
(2d Cir. 1999).

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