                          United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 98-1040
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Henry Garcia,                            *
                                         *      [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: May 1, 1998
                                Filed: May 27, 1998
                                    ___________

Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
                            ___________

PER CURIAM.

      Henry Garcia appeals the district court&s1 order denying his post-sentencing
motion for downward departure. Garcia was convicted in 1994 of a drug offense, and
we affirmed his conviction in February 1995. See United States v. Garcia, 48 F.3d
1225 (8th Cir. 1995) (unpublished table decision). In April 1995, Garcia filed a pro se
motion under 28 U.S.C. § 2255, which the district court denied, and we again affirmed.
See Garcia v. United States, No. 95-2666 (8th Cir. Aug. 2, 1995) (judgment). In


      1
        The HONORABLE RICHARD H. BATTEY, Chief Judge, United States
District Court for the District of South Dakota.
November 1997, Garcia filed a pro se “Emergency Motion for Downward Departure”
arguing that he is in the advanced stages of kidney deterioration and needs to be
released to obtain an organ transplant.

       The district court properly denied Garcia&s motion, because there is no statutory
authority to grant his untimely motion for downward departure. See Fed. R. Crim. P.
35. We also reject Garcia&s suggestion that his motion could be entertained as a motion
under 28 U.S.C. § 2255 or a petition under Federal Rule of Appellate Procedure 21 for
an extraordinary writ. Accordingly, we affirm.

      A true copy.

             Attest:

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




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