* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/19/96 FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. ENRIQUE LUNA-RODRIQUEZ,

Defendant-Appellant. No. 95-3323 (D.C. No. 91-CR-10127) (D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Defendant-appellant Enrique Luna-Rodriquez entered a plea of guilty to the charge of possession with intent to distribute appr oximately one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1). Th e district court sentenced him to sixty months’ incarceration and ordered him deporte d as a condition of his supervised release. On appeal, defendant alleges t he district court erred in declining to depart downward from the sentencing gu idelines, and exceeded its authority in ordering him deported. We first address defendant’s claim that the distric t court erred in refusing to consider him for a downward departure absent a g overnment motion, pursuant to section 5K1.1 of the United States Sentencing Gu idelines and 18 U.S.C. § 3553(e). As part of its plea agreement with defe ndant, the government agreed to file a motion for downward departure based on de fendant’s substantial assistance. Subsequently, defendant failed to appe ar for sentencing. The government then declined to file a substantial-assi stance motion based on defendant’s breach of the plea agreement by failing to appear. Defendant asserts that the district court should have evaluated his assistance to the government, and departed downwardeven in the absence of a government motion to do so. The district court stated that it did not have discretion to depart downward absent a motion by th e prosecution where defendant had breached the plea agreement by failin g to appear for sentencing.-3-

Defendant does not challenge on appeal the districtcourt’s conclusion that defendant’s failure to appear breached the plea agr eement, thus absolving the government from its obligation to file a substantia l-assistance motion. Instead, defendant maintains he was entitled to a downward d eparture because his assistance was extremely helpful to the government. Generally, this court does not have jurisdiction to review a district court’s discretionary refusal to depart downward from the g uidelines when imposing a sentence. United States v. Fisher , 55 F.3d 481, 483 (10th Cir. 1995). We do have jurisdiction, however, to review a sentencing decis ion where the district court “erroneously believed that the guidelines did not p ermit a downward departure.” United States v. Lowden , 905 F.2d 1448, 1449 (10th Cir.), cert. denied , 498 U.S. 876 (1990). A court is authorized to review the government’s re fusal to file a substantial-assistance motion where the refusal was based on an unconstitutional motive, Wade v. United States , 504 U.S. 181, 185-86 (1992), or if the refusal violates a plea agreement made by the government, U nited States v. Lee , 989 F.2d 377, 379 (10th Cir. 1993). We have indicated that a court may also consider the rare instance in which the prosecution refuses to f ile a motion for downward departure “despite overwhelming evidence that the a ccused’s assistance has been so substantial as to cry out for meaningful relief. ” United States v. Kuntz , 908-4-

F.2d 655, 657 (10th Cir. 1990)(quoting United State s v. La Guardia , 902 F.2d 1010, 1017 (1st Cir. 1990)). Defendant claims he was entitled to a downward depa rture in this third, rare situation, based on his substantial assistance to the government. The district court did not indicate that it was without authority to depart from the guidelines on the ground that defendant’s assistance was so su bstantial as to cry out for relief. As noted above, the district court’s state ment that it did not have discretion to depart downward was in the context of defendant’s breach of the plea agreement by his failure to appear. Therefore , we do not have jurisdiction to review the district court’s decision not to depart downward from the sentencing guidelines based on defendant’s assistance. The other issue presented for our de novo review is whether 18 U.S.C. § 3583(d) authorizes a district court to order, as a condition of supervised release, that a convicted defendant be deported following hi s release from incarceration. See United States v. Acosta-Olivas , 71 F.3d 375, 377 (10th Cir. 1995)(de novo standard of review applied to district court’s inte rpretation of statute). In relevant part, 18 U.S.C. § 3583(d) provides, “[i]f an alien defendant is subject to deportation, the court may provide, as a condition of supervised release, that he be deported and remain outside the United States, a nd may order that he be delivered to a duly authorized immigration official for such deportation.”-5-

This circuit recently announced that § 3583 does no t authorize the district court to order that a defendant be deported after h e is released from incarceration. United States v. Phommachanh , No. 95-3248, 1996 WL 420780, at *2 (10th Cir. July 26, 1996). Rather, the statute permits the di strict court to order, as a condition of supervised release, that the defendantbe surrendered to the INS for a determination of whether he or she shall be deporte d under INS procedures. Id. ; accordUnited States v. Xiang , 77 F.3d 771, 773 (4th Cir. 1996); United States v

. Quaye , 57 F.3d 447, 449-51 (5th Cir. 1995); United State s v. Kassar , 47 F.3d 562, 568-69 (2d Cir. 1995); United States v. Sanchez , 923 F.2d 236, 237-38 (1st Cir. 1991). Moreover, if a defendant is deported by the INS, a district court is authorized to impose the further condition of supervised release that the defendant remain outside the United States until termination of his supervised release. E.g. , Sanchez , 923 F.2d at 238 (“[A]s expressly authorized by su bsection 3583(d), the court lawfully directed that appellant, if deported , remain outside the United States.”). Given our conclusion that § 3583(d) did not authori ze the district court to order that defendant be deported, we modify the ord er imposing special conditions for supervised release, conforming it to those entered in Phommachanh , Xiang , Quaye , and Sanchez , as follows:-6- As a condition of supervised release, upon completi on of his term of imprisonment, the defendant is to be surren dered to a dulyauthorized immigration official for deportation in accordance with the established procedures provided by the Immigrat ion and Naturalization Act, 8 U.S.C. §§ 1101-1524. As a fu rther condition of supervised release, if ordered deported, defendant shall remain outside the United States. The judgment of the United States District Court fo r the District of Kansas is modified as stated above, and AFFIRMED AS MODIFI ED.

Entered for the Court

Stephen H. Anderson Circuit Judge