                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-1180
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * District of Nebraska.
                                        *
Carlos Quinones-Rodriguez,              *     [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: September 5, 2003
                              Filed: October 7, 2003
                                   ___________

Before BYE, BOWMAN, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.

      Carlos Quinones-Rodriguez (Quinones) appeals from the sentence imposed by
the District Court1 after he pleaded guilty to conspiring to distribute and possession
with intent to distribute 500 grams or more of a mixture containing
methamphetamine, in violation of 21 U.S.C. § 846 (2000).




      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
       Prior to sentencing, Quinones objected to all of the criminal history points
recommended in the presentence report (PSR) for his prior criminal sentences, on the
basis that there was no showing he had been legally represented, or had voluntarily
waived his right to counsel, as to any of the sentences. At the sentencing hearing,
Quinones expanded his objection to include the existence of the convictions
underlying two November 1999 sentences. The government submitted a copy of a
plea agreement related to one of the November convictions. As to the other
conviction, the government admitted that it had no supporting documents. The
District Court found that the plea agreement along with the PSR provided sufficient
evidence of both convictions, and that Quinones also had not met his burden of
showing he was denied the right to counsel as to his prior convictions.

        Quinones then moved for a downward departure, arguing that his status as a
deportable alien would make him ineligible for some Bureau of Prisons programs,
and that he would voluntarily waive his resistance to deportation. As to Quinones’s
first argument, the Court found there were no exceptional circumstances warranting
a departure based on his deportability. As to the second argument, the Court noted
it had discretion to grant a downward departure when a defendant voluntarily waived
his right to deportation proceedings; recognizing, however, that Quinones was going
to be “back” before the Court on a government motion for a downward departure, the
Court denied his departure motion. The Court sentenced Quinones to 235 months of
imprisonment and 5 years of supervised release.

       On appeal, Quinones argues that the District Court erred (1) in assessing
criminal history points for the November 1999 sentences, because the evidence
offered by the government was insufficient to substantiate the underlying convictions;
(2) in adding two criminal history points based on Quinones’s probationary status
when he committed the instant offense, because the bill of particulars specified that
he did not enter the conspiracy until September 1, 2002; and (3) in relying on the



                                         -2-
possibility of a future departure motion by the government to deny his own departure
motion.

       Quinones’s reliance on the bill of particulars, in challenging the two-point
enhancement for being on probation when he committed the instant offense, is raised
for the first time on appeal; thus we review this argument only for plain error. See
United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en banc) (requiring
plain error as the standard of review). There is an obvious clerical error in the bill of
particulars, which specifies that Quinones entered the conspiracy on September 1,
2002, and exited it on April 18, 2002. Further, the unobjected-to statements in the
PSR indicate Quinones was involved in the conspiracy as early as July 2001, and it
is undisputed that Quinones was sentenced to 6 months probation in May 2001 for
an assault. The District Court did not plainly err in assessing the enhancement. See
United States v. Beatty, 9 F.3d 686, 690 (8th Cir. 1993) (recognizing that a district
court may accept as true all unobjected-to factual statements in PSR); United States
v. Kilrain, 566 F.2d 979, 985 (5th Cir. 1978) (holding that a typographical mistake
on a bill of particulars was not a source of reversible error), cert. denied, 439 U.S. 819
(1978). Also, we find that the District Court’s discretionary decision not to depart is
unreviewable. See United States v. VanHouten, 307 F.3d 693, 696 (8th Cir. 2002)
(holding discretionary decisions not to depart are not reviewable absent a finding of
unconstitutional motive).

      We believe that the District Court erred, however, in overruling Quinones’s
objection to the fact of the convictions underlying his November 1999 sentences. The
plea agreement offered by the government in support of one of the contested
convictions does not, in our view, establish that Quinones actually entered the plea
that was the subject of the agreement. The government offered nothing to support the
second contested conviction, and the District Court erred in relying on the objected-to
statements in the PSR. See United States v. Wise, 976 F.2d 393, 404 (8th Cir. 1992)
(en banc) (holding that a PSR is not evidence and is not legally sufficient basis for

                                           -3-
making findings on contested issues of material facts), cert. denied, 507 U.S. 989
(1993). Because Quinones did not raise this objection until the sentencing hearing,
however, the government should be given an opportunity on remand to present
evidence to support the convictions. We thus remand for an evidentiary hearing on
this issue and resentencing.

      Accordingly, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
                      ______________________________




                                        -4-
