                    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


      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.
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 drug-
awareness 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.




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