                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 11-1352
                                  ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      * Appeal from the United States
      v.                              * District Court for the Eastern
                                      * District of Missouri.
Juan Carlos Chavez-Ramirez, also      *
known as Lorenzo Cruz Sanchez,        *    [UNPUBLISHED]
also known as Lorenzo Sanchez-Cruz, *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: September 23, 2011
                                Filed: January 18, 2012
                                 ___________

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

PER CURIAM.

      Juan Chavez-Ramirez appeals his below-Guidelines sentence of 14 months,
19 days, for illegal re-entry in violation of 8 U.S.C. § 1326(a). We affirm.
I.    BACKGROUND

       Chavez-Ramirez was deported in 1997, after living illegally in the United
States for almost twenty-four years, from the time he was six or seven1 years old. He
soon returned after deportation, and following his felony conviction for possession
of cocaine, was deported in 2005. Once again, he returned almost immediately, was
detected at the border, and was again deported six days later in 2005. He apparently
returned to the United States, and, following his detection after a traffic stop in March
2010, Chavez-Ramirez was charged with, and pleaded guilty to, the current offense.

       At sentencing, Chavez-Ramirez requested that the district court2 depart
downward based upon United States Sentencing Guidelines Manual § 2L1.2, cmt. n.8
(suggesting a downward departure for "cultural assimilation" if the defendant was
brought to the United States illegally as a young child and had resided here
continuously since that time). The district court declined this invitation, stating that
Chavez-Ramirez did not meet the requirements of the cultural assimilation guideline.
The district court found that Chavez-Ramirez did not "continuously reside" in the
United States since childhood because of the deportations in 1997 and 2005. The
court also explained that Chavez-Ramirez's significant criminal history, including two
felonies (cocaine possession and forgery), three misdemeanors (burglary, domestic
assault and petty theft), and two traffic offenses, precluded Chavez-Ramirez from
qualifying for the departure.

     The presentence investigation report calculated Chavez-Ramirez's advisory
Guidelines range as 15-21 months. The district court sentenced Chavez-Ramirez just
below the bottom of the range to 14 months plus 19 days, to reflect credit for the 11

      1
          The record is not entirely clear on this point.
      2
       The Honorable Stephen N. Limbaugh, Jr., United States District Court for the
Eastern District of Missouri.

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days Chavez-Ramirez spent in the custody of Immigration awaiting prosecution in
federal court. On appeal, Chavez-Ramirez argues that the district court committed
procedural error in its application of U.S.S.G. § 2L1.2; that the district court erred in
refusing to reduce his sentence to account for disparities between illegal re-entry
defendants in the Eastern District of Missouri and those in "fast-track" districts; and
that the district court failed to adequately explain the reasons for his sentence.

II.   DISCUSSION

      We review Chavez-Ramirez's sentence under an abuse-of-discretion standard
to determine whether the sentence is free of procedural error and whether it is
substantively unreasonable. United States v. Schmidt, 571 F.3d 743, 748 (8th Cir.
2009). The denial of a downward departure is unreviewable unless the district court
had an unconstitutional motive or an erroneous belief that it was without the authority
to grant the departure. United States v. Anderson, 570 F.3d 1025, 1034 (8th Cir.
2009).

      The district court did not commit procedural error in concluding that Chavez-
Ramirez did not qualify for downward departure relief under § 2L1.2. Application
note 8 to this guideline provides that there may be cases in which a downward
departure is appropriate based upon the circumstances of a defendant who was
brought as a child to the United States and lived most of his or her life here. The note
recommends that the district court take into account whether the defendant
continually resided in the United States, and the seriousness and extent of the
defendant's criminal history, focusing on the criminal acts which occurred after the
defendant had illegally reentered. U.S.S.G. § 2L1.2, cmt. n.8. Chavez-Ramirez
argues the district court erred in requiring his continuous physical presence in the
United States in order to qualify for relief, and argues that as someone who
immediately returned after each deportation, he has "continuously resided" in the
United States since he was a young child. Even if this is true, the district court's

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alternate basis for denying relief–based upon Chavez-Ramirez's significant criminal
history–provides a permissible basis to deny the departure. Accordingly, the district
court did not have an unconstitutional motive in refusing to apply the downward
departure guideline, nor was the court operating under an erroneous belief that it was
without authority to grant the departure. See Anderson, 570 F.3d at 1034.

       Second, the district court did not err in applying the four-level enhancement
from U.S.S.G. § 2L1.2 for Chavez-Ramirez's illegal re-entry as a convicted felon.
Chavez-Ramirez argues that this guideline is "fundamentally flawed" and results in
a sentencing range that overstates the seriousness of Chavez-Ramirez's offense and
constitutes double counting or double punishment. Chavez-Ramirez also asserts that
there is no empirical evidence to support this particular guideline. Two of Chavez-
Ramirez's arguments are foreclosed by circuit precedent. United States v. Dyck, 334
F.3d 736, 740 (8th Cir. 2003) (holding that § 2L1.2 does not double count because
the Sentencing Commission intended that the prior conviction be used to both
enhance a base offense level and calculate a criminal history score); United States v.
Talamantes, 620 F.3d 901, 902 (8th Cir. 2010) (rejecting the inadequate-empirical-
data argument because it is properly made to the district, not appellate, court). And
the district court did not err in refusing to find that the sentencing range overstated
the seriousness of Chavez-Ramirez's offense.

       Chavez-Ramirez's argument regarding the disparity between non-fast-track
districts and fast-track districts is also without merit. Although it could have varied
downward on this basis, the district court's failure to do so was certainly not an abuse
of its discretion. United States v. Bolivar-Diaz, 594 F.3d 1003, 1004-05 (8th Cir.
2010) (rejecting defendant's substantive reasonableness challenge when one of the
arguments presented to the district court was the unfairness of having resided in a
non-fast-track district). Finally, Chavez-Ramirez's argument that the district court did
not adequately explain the sentence is belied by the record.



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III.   CONCLUSION

       We affirm the sentence imposed by the district court.
                       ______________________________




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