                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2423
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Southern District of Iowa.
                                         *
Javier Duenas-Moreno,                    *      [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 15, 2001
                                  Filed: May 30, 2001
                                   ___________

Before BOWMAN, Circuit Judge, BOGUE,1 and MAGNUSON,2 District Judges.3
                              ___________

PER CURIAM.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota, sitting by designation.
      3
        Pursuant to 28 U.S.C. § 46(b), the Chief Judge certified the existence of a
judicial emergency necessitating the designation of a panel consisting of fewer than two
members of the Court of Appeals.
       Javier Duenas-Moreno pleaded guilty to illegal reentry into the United States
following his previous arrest and deportation as an illegal alien, 8 U.S.C. § 1326 (1994
& Supp. IV 1998), and to possessing a firearm after conviction for a felony and while
being an illegal alien, 18 U.S.C. § 922(g)(1), (g)(5) (1994 & Supp. IV 1998). At
sentencing, he sought a downward departure from the applicable guideline range on the
ground that because of his status as a deportable alien he would suffer adverse
consequences while in the custody of the Bureau of Prisons. The District Court4 denied
a downward departure, concluding as a matter of law that it lacked authority to depart
on this ground. Duenas-Moreno appeals, arguing that the District Court erred in
denying his motion for a downward departure. He argues that the substantial penal
burdens imposed on him as a result of his alienage were not contemplated under the
sentencing guidelines. We reject this argument. The circumstance Duenas-Moreno
asserts to justify a downward departure, i.e., his status as a criminally deportable alien,
was in fact considered by the Sentencing Commission as a predicate defining element
for the applicable guideline, U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2000),
and applies to everyone in the same status as the defendant. Thus his status as a
deportable alien cannot, as a matter of law, be considered a basis for departure. United
States v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th Cir. 2001). Moreover, Duenas-
Moreno is unable to show that he is burdened by adverse penal consequences different
from those imposed upon other deportable aliens sentenced under the same guideline.

      The sentence imposed by the District Court is affirmed.




      4
        The Honorable Robert Pratt, United States District Judge for the Southern
District of Iowa.
                                            -2-
A true copy.

      Attest:

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




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