United States v. Luis M Garcia-Moreno

PER CURIAM. Luis Manuel Garcia-Moreno pleaded guilty to a one-count indictment charging him with being found in the United States after deportation, see 8 U.S.C. § 1326 (1994 & Supp. IV 1998). At sentencing, Garcia-Moreno moved for a downward departure based on the effect of his deportable-alien status on the conditions of his incarceration. The District Court 1 denied the motion and sentenced Garcia-Moreno to forty-three months’ imprisonment and three years of supervised release. On appeal, counsel has filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing only that the District Court erred in refusing to depart. Garcia-Moreno has not filed a pro se supplemental brief. We do not have authority to review a district court’s discretionary decision to deny a departure. See United States v. Correa, 167 F.3d 414, 417 (8th Cir.1999). Moreover, a district court lacks authority to depart downward based on a defendant’s deportable-alien status. United States v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th Cir.2001) (holding that defendant’s alien status is an element of the crime defined by § 1326 and thus cannot be a factor not adequately considered by the Sentencing Commission in formulating the applicable sentencing guideline, U.S.S.G. § 2L1.2 (2000)). Accordingly, the District Court as a matter of law had no discretion to exercise in denying the downward-departure motion. Following our independent review, see Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), we find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and affirm. Footnotes [1] The Honorable Mark W. Bennett, Chief Judge, United States District Court for the Northern District of Iowa.