The Honorable Richard H. Battey, Chief Judge, United States District Court for 1 the District of South Dakota, sitting by designation. 1 United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3205

_____________ United States of America, * * Plaintiff - Appellee, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * Lou Jiam Saelee, * * Defendant - Appellant. *

_____________ Submitted: February 11, 1997 Filed: August 6, 1997

_____________ Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and BATTEY, District Judge. 1

_____________The Honorable Charles R. Wolle, Chi ef Judge, United States District Court for 2 the Southern District of Iowa. 2 HANSEN, Circuit Judge. Following Lou Jiam Saelee's plea of guilty to one count of po ssession with intent to distribute opium, in violation of 2 1 U.S.C. § 841(a)(1), and one count of conspiracy to possess and distribute opium, in violation of 21 U.S.C. §§ 841(a)(1) and 846, the district court denied Saelee's downward departure motion and sentenced him within 2 the appli cable range as determined by the Sentencing Guidelines. Saelee appeals , contending the district court di d not understand its authority to depart downward. We disagree and dismiss this appeal for lack of jurisdiction.
Asentencing court may depart from the applicable 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 i n formula ting the guidelines that should result in a sentence different from that described." 18 U.S.C. 3553(b) (1994); see also U.S. Sentencing Guidelines Manual § 5K2.0 (1995) (policy statement on the grounds for departure under 18 U.S.C

. § 3553( b)). Under section 3553(b), a district court may depart from the Guideline s when " certain aspects of the case [are] unusual enough for it to fall outside th e heartland of cases in the Guideline[s]." Koon v. United States , 116 S. Ct. 2035, 2046 (1996). "We accord a unitary abuse-of-discretion rev iew to `a district court's decision to depart fr om the Guidelines,' . . . but a discretionary decision not to depart from th e Guidelines is unreviewable on appeal absent an unconstitutional motive." United States v. Field , 110 F.3d 587, 591 (8th Cir. 1997) (quoting Koon , 116 S. Ct. at 2046). "We have jurisdiction to review a district court's decision not to depart only where the3

decision is based on the district court's legally erroneous determination that it lacked authority to consider a particular mitigating factor." Id.
Saelee moved for a downward departure based upon his circumstances as a political refugee. Saelee put on evidence showing that he res ided in a refugee camp for ten years, beginning at age six, and had no opportunity there for formal education

. Because of his conviction, Saelee noted he was likely subject to deportation after his incarceration. He highlighted the possibility that no other country would accept hi m because of his conviction for drug trafficking, in which case he would be confined in an INS detention facility for an indefinite period after he serves his prison sentence

. Saelee maintained that the uncertainty of his future deportation and the possibility of permanent separation from his family create a harsher consequence than that faced by a typ ical noncitizen defendant. Saelee urged the district court to consider th e circumstances surrounding his crime, his personal hi story, and his uncertain future, and to grant him a downward departure.
The district court said it had difficulty squaring a departure based upon Saelee's national origin w ith sections 5H1.10 and 5H1.12 of the Sentencing Guidelines, which state that race, sex, national origin, creed, religion, and socioeconomic status "are not relevant in the determination of a sentence," USSG § 5H1.10, and "lack of guidanc e as a youth and similar circumstances indicating a disadvantaged upbringing are no t relevant grounds for imposing a sentence outside the applicable guideline range," id. § 5H1.12. When the distric t court invited further comment, Saelee's attorney clarified that Saelee was simply pointing out that the impact his status as a deportable alien has on the consequences of his conviction is a relevant circumstance to sentencing and that it makes his case atypical and extraordinary. He also explained that Saelee's lack o f guidance as a youth and his youthful deprivation are relevant because if Saelee had not been so deprived educationally, he would have been able to become a naturalize d citizen of the United States and would not be subject to any possible deportation.4

The district court noted that a defendant's status as a political refugee is not , alone, ground for departure. Nonetheless, the district court concluded: Now, as a matter of law, the case of the United States versus Koon

. . . sug gests that a court can always take into account the defendant' s personal c ircumstances, and I am doing so, but I do not believe the y warrant a departure below the guide line range that the presentence report has found to be applicable here.
(Sentencing Tr. at 62.) The court further explained, "I don't think that as a matter of law there's a right to departure wh en one has bad circumstances, but I'm saying that as a matter of law, under Koon , the court may always depart if the circumstances warrant it." ( Id. at 63.)
We a gree with the district court that Saelee's status as an alien is not, by itself, sufficient to warrant a departure from the Guidelines. USSG § 5K1.10; Koon , 116 S. Ct. at 2044-45 (noting that national or igin is never a permissible reason for departure). Thus , the district court correctly understood that its discretionary authority to depart rested upon a determination that the circumstances of this case make it exceptional and at ypical, such that it is outside of the heartland of cases. Because the district court understood its authority to depart downward, but declined to do so in the circumstances presented, its decision not to exercise that authority is unreviewable. We therefore dismiss this appeal for want of jurisdiction.5

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.