                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-4339
                                    ___________

United States of America,                *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Mario Alonso Aldaz-Loya,                 *
                                         * [UNPUBLISHED]
             Appellee.                   *
                                    ___________

                            Submitted: May 19, 2000
                                Filed: May 30, 2000
                                    ___________

Before LOKEN, FAGG, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       The United States appeals the twenty-four-month sentence imposed by the
district court after Mario Alonso Aldaz-Loya pleaded guilty to illegal re-entry into the
United States after deportation, in violation of 8 U.S.C. § 1326(b)(2). The court
departed sua sponte from the applicable Guidelines imprisonment range of forty-six to
fifty-seven months, commenting that “the Guideline for this offense is too harsh” and
that “the applicable Guidelines . . . overrepresent the seriousness of defendant’s past
criminal history.”
       We conclude that the district court’s decision to depart from the Guidelines was
an abuse of discretion. See Koon v. United States, 518 U.S. 81, 99 (1996) (standard
of review); United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir. 1987) (abuse of
discretion occurs when irrelevant or improper factor is considered and given significant
weight). “The Guidelines make clear that ‘dissatisfaction with the available sentencing
range or a preference for a different sentence than that authorized by the guidelines is
not an appropriate basis for a sentence outside the applicable guideline range.’” United
States v. Ross, Nos. 98-4100/4106, 2000 WL 427631, at *9 (8th Cir. Apr. 21, 2000)
(quoting U.S. Sentencing Guidelines Manual § 5K2.0, p.s., comment.).

        Although the district court cited U.S. Sentencing Guidelines Manual § 4A1.3,
p.s., and concluded that Aldaz-Loya’s criminal history was overrepresented - - without
making any findings as to why that was so - - we are satisfied from our review of the
record that a section 4A1.3 departure was not warranted in this case. The defendant
had two prior state court drug trafficking convictions. Because they were combined for
sentencing in state court, he only received three criminal history points for the two
separate convictions. He committed the instant offense while on state probation, which
resulted in two additional criminal history points being assessed for a total of five. The
five criminal history points placed him in criminal history category III. Nothing about
his criminal history is overstated by such a placement. See United States v. McNeil,
90 F.3d 298, 301 (8th Cir.), cert. denied, 519 U.S. 1034 (1996). The court’s real
concern was its view of the harshness of the sentence mandated by the Guidelines1;
section 4A1.3 does not, however, open the door that section 5K2.0 closes when there
is no overstatement of criminal history.



      1
        "I am going to depart from the guidelines because in my opinion in this
particular case the sentence that the guidelines impose is too harsh for the offense that
the man committed. I do not feel it would be a proper sentence and I couldn't live with
myself if I put this man away for almost four years for crossing that river." (Sent. Tr.
at 4.)
                                           -2-
       Accordingly, we reverse the judgment of the district court and remand for
resentencing.

      A true copy.

            Attest:

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




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