00-3640 U.S. v. Palomino-Rivera

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“Mr. Palomino-Rivera submits that he presents an atypical case that was not adequately considered by the Sentencing Commission. … The district court agreed and, in granting the downward departure, explained that it did not ‘think this kind of a borderline felony was adequately considered by the Commission.’

“We respectfully disagree with the district court and conclude that the Commission fully considered the issue. There can be no question that the Commission was aware that the blanket 16-level enhancement may work a disproportionately harsh sentence in cases in which the aggravated felony is relatively minor. Indeed, Application Note 5 specifically states that ‘[a]ggravated felonies that trigger the [sixteen-level enhancement] vary widely.’ Nevertheless, the Commission limited the grounds of departure to the specific circumstances detailed in the note. Under these circumstances, we cannot say that a departure tied to the severity of the aggravated felony is a mitigating factor not taken into consideration by the Guidelines.”

Reversed and remanded.

Appeal from the United States District Court for the Northern District of Illinois, Conlon, J., Ripple, J.