1

The Hon. Paul A. Magnuson, Chief Judge, United States District Court for the

District of Minnesota, sitting by designation.

2

The Hon. Mark W. Bennett, Chief Judge, United States District Court for the

Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 99-3884NI

_____________

United States of America, *

*

Appellee, *

* On Appeal from the United

v. * States District Court

* for the Northern District

* of Iowa.

Jesus Navarro, *

*

Appellant. *

___________

 Submitted: May 9, 2000

 Filed: July 17, 2000

___________

Before RICHARD S. ARNOLD and HEANEY, Circuit Judges, and MAGNUSON,1

District Judge.

___________

RICHARD S. ARNOLD, Circuit Judge.

The defendant appeals the District Court's2

 denial of his motion to depart

downward from the Sentencing Guidelines. He argues that the decision not to depart
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subjected him to harsher punishment simply because of his alienage, and that his case

is reviewable on appeal because (1) the Court based its denial of departure on a clearly

erroneous factual finding; and (2) because the Court's decision has an unconstitutional

effect. We disagree and dismiss this appeal. 

I.

The defendant is a citizen of Mexico who entered the United States illegally in

1988 and has lived in Arizona since that time. From 1996 to 1998, the defendant was

engaged in a drug-related conspiracy and was responsible for selling approximately 74

kilograms of marijuana in Iowa. A grand jury indicted the defendant with four other

people in a four-count indictment. The defendant was named in two of the four counts

– conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h), and

conspiracy to distribute controlled substances, in violation of 21 U.S.C. § 846. The

defendant was arraigned on the indictment, and he entered guilty pleas to both counts

in which he was named.

At sentencing, the parties agreed that the defendant's offense level was 25, that

the criminal history category was 1, and that the Guidelines sentencing range was 57-71

months imprisonment. The Court imposed a 57-month sentence, the bottom of the

Guidelines range, followed by three years of supervised release.

The defendant sought a downward departure based on his status as an alien

subject to deportation, a status that made him ineligible to be incarcerated in a

minimum security prison or serve the final portion of his sentence in a community

corrections center. He argued that such ineligibility subjected him to harsher conditions

of confinement solely because of his status as a deportable alien, a circumstance which,

he says, would justify an offset in his sentence. The defendant maintained that the

detriment of deportation outweighed any benefit he might derive from avoiding the

supervised-release portion of his sentence after he is deported. He also argued that he
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would not be able to have his sentence reduced for successful completion of a drugawareness program, that deportation would not permit him to reside in the United

States with his family, and that his family would be required to relocate.

The District Court found that the defendant was a deportable alien who was

ineligible for confinement in a minimum-security prison or in community confinement

during the last ten per cent. of his sentence. The Court considered the benefits and

detriments of the defendant's case and found that there was some benefit to being a

deportable alien, because the defendant would not have to serve the supervised-release

portion of his sentence after deportation. The Court concluded that the defendant's case

did not fall outside the heartland of the Sentencing Guidelines and denied the

defendant's motion for a departure. The Court took this action after stating that it had

the legal authority to depart. It simply chose not to use this authority. 

II.

The defendant appeals the District Court's decision not to depart downward from

the Sentencing Guidelines, arguing that the Court should have granted a departure to

offset what he characterizes as the alienage-based increased severity of his sentence.

The defendant maintains that the District Court's denial of his departure motion is

reviewable for two reasons. First, he argues that the Court's decision not to depart was

based on the erroneous factual finding that he would derive sufficient benefit from not

having to serve the supervised-release portion of his sentence after deportation to

outweigh the more onerous conditions of confinement. He contends that this finding

is clearly erroneous because deportation does not terminate supervised release, which

remains in force until discharged. Instead, deportation results in a more restrictive

condition of supervision, rather than a benefit, because his possible return to the United

States after deportation would require him to report to a probation officer and would

subject him to arrest and a felony charge. Second, he argues that the District Court's

decision not to depart had the unconstitutional effect of subjecting him to harsher
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conditions of confinement simply because of his alienage, in violation of his right to due

process.

As an initial matter, "a discretionary decision not to depart from the Guidelines

is unreviewable on appeal absent an unconstitutional motive," or absent a "court's

legally erroneous determination that it lacked authority to consider a particular

mitigating factor." United States v. Saelee, 123 F. 3d 1024, 1025 (8th Cir. 1997), citing

United States v. Field, 110 F.3d 587, 591 (8th Cir. 1997). There is no indication, nor

does the defendant argue, that the Court believed it was without the authority to deny

the departure. In fact, the defendant states that "the judge . . . agreed that he had the

authority to make such a departure." Appellant's Brief 4. Moreover, the defendant also

"does not assert that the trial judge had an unconstitutional motive," nor does the

defendant believe that the Court "purposefully impose[d] a harsher sentence because

Navarro is an alien." Appellant's Brief 11. 

The defendant asserts, and we agree, that we would have the authority to review

a refusal to depart downward if, for example, such an action were based upon a

defendant's race or sex. In that event, the sentence would have been imposed in

violation of law, see 18 U.S.C. §3742(a)(1). Nothing of the kind occurred here,

however. Defendant entered this country illegally. Thereafter, he committed

aggravated felonies. He is therefore concededly deportable as a matter of law. As a

consequence of his deportability, he is considered a greater escape risk, and is therefore

subjected to more onerous conditions of confinement. There is nothing unconstitutional

or unfair about these consequences, all of which have followed upon the defendant's

voluntary acts. We cannot agree that he is given a more onerous sentence solely on the

basis of alienage. Congress has virtually plenary power over immigration matters, and

it has the right to determine the conditions upon which noncitizens are allowed to

remain in this country. If a violation of those conditions causes a prisoner, who has

admittedly committed serious offenses, to be held more securely, the result is simply

the permissible consequence of two things: the commission of the crimes and the
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defendant's status under the immigration statutes. There is nothing unconstitutional

about what the District Court did here. 

Defendant also contends that the decision is reviewable because it was based on

a clearly erroneous finding of fact. The District Court stated that the defendant's

deportation would enable him to avoid the three years of supervised release, a benefit

that, in the opinion of the Court, outweighed the detriment of having to leave this

country. In our view, this comparison of two states of being is not properly

characterized as a finding of fact. It is simply the District Court's discretionary

weighing of the circumstances of defendant's case. Defendant says that if he ever

returns he would have to serve the three years of supervised release, and no doubt this

is true, but we do not see what difference this circumstance would make. If the

defendant does return, his return would almost certainly be a separate crime in itself.

That he would suffer the consequences of his earlier sentence, plus, in all likelihood,

the consequences of his new crime, is no just cause for complaint. 

In sum, the District Court in this case recognized its authority to depart

downward and then chose, for permissible reasons, not to do so. Its exercise of

discretion in making this choice is not reviewable. 

The appeal is dismissed.

A true copy.

Attest:

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