UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5844

GUILLERMO JOSE GONZALEZ,

a/k/a G. G.,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5845

VICTOR VINICIO ENCARNACION,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

Jackson L. Kiser, Chief District Judge.

(CR-94-39)

Submitted: June 18, 1996

Decided: July 12, 1996

Before LUTTIG and MICHAEL, Circuit Judges, and PHILLIPS,

Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Randy V. Cargill, Roanoke, Virginia; Willis J. Spaulding, Charlottesville, Virginia, for Appellants. Robert P. Crouch, Jr., United States

Attorney, Joseph W. H. Mott, Assistant United States Attorney,

Shelby Katz, Third-year Law Intern, Eric Chaffin, Third-year Law

Intern, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Guillermo Jose Gonzalez and Victor Vinicio Encarnacion both

entered guilty pleas to one count of conspiracy to distribute cocaine,

21 U.S.C.A. § 846 (West Supp. 1996), pursuant to plea agreements.

Gonzalez also agreed to pay $25,000 in lieu of forfeiture of his property. Gonzalez was sentenced to a term of 50 months imprisonment;

Encarnacion received a sentence of 90 months imprisonment. Both

appeal their sentences. Gonzalez contends that the district court failed

to recognize its authority to depart on the grounds he put forward at

sentencing. Encarnacion, a citizen of the Dominican Republic, argues

that the court erred in giving him two criminal history points for a

prior sentence for illegal entry. We affirm.

Gonzalez requested a departure below the guideline range based on

his extraordinary family situation (he has a schizophrenic son who

lives at home) and his contributions to his community (he had been

instrumental in the creation of a community garden on his block in

Brooklyn). When a sentencing court exercises its discretion not to

depart, its decision is not reviewable by the appeals court. United

States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S.

819 (1990). However, when the court refuses to depart because of a

perceived lack of legal authority to depart, the defendant may appeal.

United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

 2
Both family circumstances and contributions to the community are

identified in policy statements as "not ordinarily relevant" to a determination of whether the sentence should be outside the guideline

range. USSG §§ 5H1.6, 5H1.11, p.s. The language of the policy statements clearly authorizes the sentencing court to depart on these

grounds when the court finds that truly extraordinary circumstances

are present. Our examination of the record discloses that the district

court recognized that a departure could be made in extraordinary circumstances. Construing the district court's statements in the light

most favorable to Gonzalez, see Hall, 977 F.2d at 863, there is nothing in the record to support Gonzalez's contention that the court

found that a departure could never be made on these grounds. Rather,

the record discloses that the court exercised its discretion not to depart

in this case.

Encarnacion's criminal history calculation included two criminal

history points for a prior sentence of 1 year and 1 day for illegal entry.

The probation officer reported in the presentence report that Encarnacion, a native of the Dominican Republic, entered the country illegally from Puerto Rico in 1985 and was deported after serving 9

months of his sentence. The report further stated that Encarnacion

again entered the country illegally in 1990, but in 1991 was granted

amnesty and received permission to remain in the country with a

work permit. At the sentencing hearing, defense counsel argued that

Encarnacion had received a general amnesty in 1991 which functioned as a pardon of the 1985 illegal entry offense. He argued that

no criminal history points should be assessed for the sentence. The

district court did not agree that an amnesty would eradicate the illegal

entry conviction and found that the points were correctly given.

Encarnacion was sentenced to a term of 90 months.

Two criminal history points are added for each prior sentence of

imprisonment of at least sixty days but less than one year and one

month which was imposed within ten years of the commencement of

the instant offense. USSG §§ 4A1.1(b), 4A1.2(e)(2). Sentences for

convictions which have been set aside or for which the defendant has

been pardoned are counted; expunged sentences are not counted.

USSG § 4A1.2, comment. (n.10). Encarnacion argues that, because he

obtained a work permit, his prior illegal entry conviction should be

viewed as a minor, excludable offense similar to juvenile status

 3
offenses. See USSG § 4A1.2(c)(2). Encarnacion also argues that the

prior sentence should not be considered because it was imposed

nearly ten years earlier. Finally, Encarnacion suggests that to increase

the penalty for his current drug offense because of a prior "offense

based on alienage" may be discriminatory and may violate due process.

Encarnacion has advanced no legitimate reason why the prior sentence should not have been counted. The sentence has not been

expunged and was imposed within ten years of the commencement of

the conspiracy to which he pled guilty. His disregard of the immigration laws, not his alien status, is the reason for the increased punishment he faces. Therefore, we affirm his sentence.

For the reasons discussed, both sentences are affirmed. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

 4