I. Overview
The Government appeals Jesus Manuel Rios-Favela’s (“Defendant”) sentence imposed after he pled guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. §§ 1326(a), (b)(1) and (b)(2). Applying section 2L1.2(b)(2) of the Sentencing Guidelines, the court adjusted the base offense level upward sixteen levels; however, it then departed downward ten levels based in part on its finding that Defendant’s aggravated felony conviction was not serious enough to warrant a sixteen-level increase. We must determine whether the district court had legal authority to consider the underlying facts of Defendant’s aggravated felony conviction as a basis for departure. Because we conclude that the Sentencing Commission adequately considered the nature of the underlying convictions when it formulated the section 2L1.2 guidelines and determined which prior offenses warranted a sixteen-level adjustment, we hold that the district court had no legal authority to depart based on the facts of Defendant’s predicate offense.
II. Background
In July 1995, the California Parole Office reported Defendant to the INS as an alien who had reentered the United States following felony convictions and deportation. After confirming Defendant’s two prior deportations and the absence of an application for reentry, the INS arrested Defendant. The indictment alleged that prior to his deportation, Defendant had been convicted of the following offenses: sale or transportation of a controlled substance in violation of California Health and Safety Code § 11352(a)-an aggravated felony; possession of a controlled substance in violation of California Health and Safety Code § 11350(a)-a felony; and possession of a firearm by a felon in violation of California Penal Code § 12021(a)-a felony. As a result of his arrest in the instant case, Defendant pled guilty to one count of illegal *655 reentry in violation of sections 1326(a), 1326(b)(1), and 1326(b)(2).
The Probation Office applied section 2L1.2(b)(2) of the Sentencing Guidelines and calculated Defendant’s offense level as follows: base level of eight, plus sixteen for the prior aggravated felony, minus three for acceptance of responsibility, for a total offense level of twenty-one. In addition to the three convictions alleged in the indictment, Defendant also had convictions for possession of a dangerous weapon, exhibiting a deadly weapon, felon in possession of a firearm, and obstructing or resisting a police officer. As a result of these convictions, Defendant had a criminal history category of VI. The Probation Office determined the sentencing range to be 77 to 96 months. It identified no factors warranting departure.
The Pre-Sentencing Report (“PSR”) provided only minimal facts regarding Defendant’s aggravated felony conviction for sale or transportation of a controlled substance: officers saw Defendant and a juvenile selling cocaine and marijuana to several people; they then made an undercover purchase of cocaine and marijuana from Defendant and the juvenile. The PSR did not report the quantity of drugs involved. For this offense, Defendant was originally sentenced to three years probation with 270 days in jail; however, his probation was subsequently revoked and he was sentenced to three years imprisonment.
Defendant requested downward departures based on: 1) his near completion of his parole term; 2) his “voluntary disclosure” of his illegal reentry by reporting to his parole officer; 3) his unique family circumstances; and 4) the possibility that he might be subjected to more severe punishment because of his immigration status. The Government opposed departure on any of these grounds, as did the Probation Office.
The Probation Office filed a Second Addendum to the PSR, drawing the court’s attention to
United States v. Cuevas-Gomez,
On January 29, 1996, the court held a sentencing hearing at which it invited Defendant to seek a downward departure pursuant to Cuevas-Gomez. Defendant’s counsel argued that the aggravated felony was “relatively minor” and did not warrant the sixteen-level increase. Although counsel did not know the quantity of drugs involved, she asserted that if there had been a significant amount, the quantity would have been included in the police and probation reports. The Government opposed the departure.
The district court considered Defendant’s four requested grounds of departure-near parole completion, voluntary disclosure, unique family circumstances, and immigration status-but found that none justified a downward departure. Nevertheless, it departed downward ten levels based on the minor nature of the aggravated felony and other equitable factors, 1 stating:
[T]he Court does feel that based on United States v. Cuevas-Gomez, it is appropriate to depart downward. The sixteen-level adjustment is a very high and serious one, and it should definitely be supported by a serious crime, and although, of course, the crime in question does fit within the guidelines requiring the sixteen-point adjustment, the Court now is aware that it has the discretion to depart downward....
The crime was a serious one and the Court is never one to downgrade the seriousness of selling narcotics, especially as here when there’s a juvenile who was allegedly involved. However, the Court does find that in this ease, it would be a disproportionate punishment to aggravate the Defendant’s crime by sixteen points, given the other facts that have been pointed out that are equitable factors in his favor—the fact that he was no longer engaged in that type of activity, and that he *656 was almost at the end of his parole period. These are factors that the Court does consider in his favor, and as to the crime itself, there is no showing of how much was involved, how serious it was, or the amount involved.
The resulting offense level was eleven, with a sentencing range of 27-33 months. The court imposed a sentence of 30 months imprisonment.
III. Standard of Review
The district court’s decision to depart from the guidelines is reviewed under the abuse of discretion standard.
Koon v. United States,
— U.S.-,-,
IV. Discussion
A. Legal Authority To Depart
Under 18 U.S.C. § 3553(b), a court is authorized to depart from the guideline range if:
the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
See
USSG § 5K2.0, p.s. In
Cuevas-Gomez,
The district courts have statutory authority to depart from the Guidelines in those cases in which the court finds “an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission.” 18 U.S.C. § 3553(b); USSG § 5K2.0 (policy statement regarding departure). Nothing in section 3553(b) or in the Guidelines suggests that the district court’s departure authority does not extend to USSG § 2L1.2(b)(2).
Id. Cuevas-Gomez does not speak to whether the Sentencing Commission adequately considered the nature of the aggravated felonies when it determined which of those offenses justified a sixteen-level adjustment; whether the Sentencing Commission did adequately consider the nature of the Defendant’s predicate felony is the question we now face. 2
The Supreme Court has said that the Sentencing Commission did not adequately take into consideration cases that are unusual or atypical, but that it carved out a heartland for each guideline.
Koon,
— U.S. at-,
Congress enacted a statutory scheme that creates three separate offenses, with substantially different maximum sentences, for aliens who illegally reenter the United States, depending upon their criminal record. 8 U.S.C. § 1326. The maximum statutory sentence for reentering aliens with no criminal history is two years,
id.
at 1326(a), for those with a felony conviction is ten years,
id.
at 1326(b)(1), and for those with an aggravated felony conviction is twenty years.
Id.
at 1326(b)(2). As the Second Circuit recognized, “[i]n enacting 8 U.S.C. § 1326, Congress plainly intended to punish more severely those individuals who illegally reenter the country after having committed aggravated felonies than those who illegally reenter the country after having committed lesser crimes.”
United States v. Amaya-Benitez,
The Sentencing Commission established a three-part guideline that mirrored the statutory scheme,
3
providing for upward adjustments based on criminal history: aliens with a felony conviction receive a four-level adjustment, while aliens with an aggravated felony conviction receive a sixteen-level adjustment. USSG § 2L1.2(b). In defining which aggravated felonies warranted the sixteen-level adjustment, the Sentencing Commission considered the statutory definition of “aggravated felony” provided in 8 U.S.C. § 1101(a)(43), as evidenced by its direction in note 7 to “see” the statute. Although at least one other circuit has held that the Sentencing Commission adopted in full the statutory definition of aggravated felony provided in 8 U.S.C. § 1101(a)(43),
see MaulValverde,
In fashioning its list of aggravated felonies warranting the sixteen-level adjustment, the
*658
Commission must have carefully considered the nature of the statutory aggravated felonies and removed those that did not warrant the upward adjustment. The Commission was undoubtedly aware of the broad range of drug-trafficking offenses contained in the statutory definition and decided that each drug-trafficking offense warranted the same sentence range, regardless of the quantity of drugs. If the Commission had thought that drug-trafficking offenses involving smaller quantities of drugs did not warrant the adjustment, it could have excluded those offenses from its guideline definition of aggravated felony. The Commission certainly knew how to frame guidelines that varied according to the amount of drugs.
See
USSG § 2D1.1;
United States v. Martinez,
Because the Commission adequately considered the nature of predicate aggravated felonies warranting the sixteen-level adjustment, the district court drew an erroneous legal conclusion when it determined that it could vertically depart based on the facts of Defendant’s underlying conviction. As such, the court abused its discretion.
We find support for our conclusion in decisions from the Second and Eighth Circuits. On facts similar to those in this ease, the Second Circuit concluded that “a court may not look to the facts underlying a predicate conviction to justify a departure from a guideline-imposed sentence on the basis of mitigating or aggravating circumstances surrounding such conviction.”
Amaya-Benitez,
Defendant argues that we have approved of departures based on the minor nature of prior offenses in the career offender context. For example, in
United States v. Lawrence,
However, a horizontal departure in the career criminal context is different from the vertical departure here in a critical way: the Sentencing Guidelines specifically contemplate a departure based on overrepresentation of criminal history. USSG § 4A1.3. There is no analogue in the Guidelines for departure based on the underlying nature of a predicate offense. In departing from career offender guidelines, the court takes a defendant’s entire criminal history into account. Here, the court did not evaluate the defendant’s background, but determined, independent of the guidelines, what offenses are serious enough to warrant the sixteen-level departure. In so doing, it invaded the province of Congress and the Commission.
If the court had found that the nature of Defendant’s prior convictions resulted in a criminal history category that overrepresented the seriousness of his history, it could have horizontally departed from that category.
*659
4
See United States v. Flores-Uribe,
The Supreme Court has recognized that sentencing judges retain discretion “to consider every convicted person as an individual and every ease as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.”
Koon,
— U.S. at-,
At the heart of this case is a guideline that provides a substantial adjustment for a crime that some believe does not deserve such a lengthy sentence. Defendant’s trial counsel noted: “In all of these eases, I’ve never had a Government’s attorney stand up and say they actually thought somebody deserved six and [one-]half to eight years in jail for being in this country illegally....” The district court stated: “The sixteen-level adjustment is a very high and serious one, and it should definitely be supported by a serious crime----” Despite counsel’s dissatisfaction with the sentencing range and the court’s views on the requisite seriousness of the predicate offense, Congress and the Sentencing Commission did decide that some defendants convicted of illegal reentry deserve sentences in the 77-96 month range-specifieally, persons like Defendant with a criminal history category VI and a prior conviction for one of the offenses, including drug trafficking, defined as an “aggravated felony.” And as the Eighth Circuit aptly points out: “A court may not depart because it considers a Guideline misguided.”
Maul-Valverde,
We are mindful of the Government’s concern that the floodgates would open if we authorized this departure. In illegal reentry cases where the predicate offense is a drug-trafficking conviction, the severity of the sentence would depend solely on the sentencing judge’s view of how serious the underlying conduct must be-i.e., what quantity of drugs is enough-to warrant the sixteen-level adjustment. Such a result would undermine the Guidelines’ goal of obtaining uniformity, predictability and detachment.
There is no doubt that a district court, in a section 1326 case, can consider the minor nature of the aggravated felony in the context of a defendant’s entire criminal history and can horizontally depart based on overrepresentation of criminal history category. However, despite a district court’s discretion to consider individual factors, its authority to depart is limited to circumstances not adequately taken into consideration by the Commission. The Commission must have realized when it included as an “aggravated felony” all drug-trafficking offenses that the broad definition included both small and large quantities. Had the Commission believed that small-quantity-drug offenses do not warrant the adjustment, it could have excluded them. Therefore, the district court abused its discretion by determining that the minor nature of Defendant’s aggravated felony conviction was a permissible basis for departure.
B. Facts Underlying Defendant’s Conviction
Because we remand this ease for resentencing, we will briefly address the district court’s finding that Defendant’s crime was minor.
5
This characterization may affect
*660
the question of whether the criminal history category into which Defendant falls overrepresents the seriousness of that history. A defendant bears the burden of proving mitigating factors at sentencing.
United States v. Barnes,
V. Conclusion
Because the district court did not have legal authority to consider the underlying facts of Defendant’s aggravated felony conviction as a basis for departure, we vacate the sentence and remand for resentencing in light of this decision.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Notes
. We note that the extent to which the court relied on these equitable factors rather than the nature of the crime is questionable, particularly in light of its denial of Defendant’s request to depart based specifically on the near completion of his parole term.
. Because the Government properly preserved for appeal its objection to the court’s departure, we reject Defendant’s argument that the Government waived the issue of whether the district court had legal authority to depart.
. Although the guideline mirrors the statutory scheme, we have held repeatedly that a district court must consider the specific offense characteristics of a defendant’s predicate offense under USSG § 2L1.2(b) to determine the defendant's sentence. The Guideline subsections do not necessarily correspond to the statutory subsections.
See United States v. Arias-Granados,
. Notably, the court could not have reached a guideline range including 30 months-the sentence it imposed on Defendant-solely through a departure from Defendant’s criminal history category. At a base offense level of 21, the sentencing range for category VI is 77-96 months and for category I is 37-46 months.
. The Government also asserts that the district court abused its discretion by failing to explain adequately the extent of the departure and by failing to analogize the extent of the departure to other Guidelines. Because we reverse on other grounds, we need not reach this question. How
*660
ever, we note that we recently reconsidered our position in
United States v. Lira-Barraza,