                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1988
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Mario Flamenco,                        * Western District of Arkansas.
                                       *
            Appellant.                 *     [UNPUBLISHED]
                                       *
                                  ___________

                             Submitted: January 27, 2004
                                Filed: February 5, 2004
                                 ___________

Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

       A jury found Mario Flamenco guilty of one count of conspiring to distribute
methamphetamine and one count of aiding and abetting the possession of
methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii), and 846, and 18 U.S.C. § 2. The district court1 sentenced him to
concurrent prison terms of 121 months followed by concurrent supervised release
terms of 3 and 4 years. On appeal, counsel has moved to withdraw and has filed a

      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
brief under Anders v. California, 386 U.S. 738 (1967), raising as issues whether the
district court erred in sentencing Flamenco when it denied a downward departure and
refused to find him eligible for a drug-treatment program, and erred at trial when it
made adverse evidentiary rulings and refused to give certain jury instructions.

       The district court stated that it would not exercise its discretion to grant a
downward departure based on Flamenco's deportable-alien status; that decision is
unreviewable, see United States v. Lim, 235 F.3d 382, 385 (8th Cir. 2000). A careful
review of the trial transcript shows that the district court's conclusion that Flamenco's
offense was a serious drug trafficking offense precluding a departure for aberrant
behavior under U.S.S.G. § 5K2.20 is correct. Flamenco cannot meet the requirement
of U.S.S.G. § 5C1.2(a)(5). We conclude the district court did not err in leaving the
drug-treatment determination to the Bureau of Prisons, see 18 U.S.C. § 3621(b); did
not abuse its discretion in any of its evidentiary rulings, see United States v. Claxton,
276 F.3d 420, 422 (8th Cir. 2002) (standard of review); and did not err in denying
Flamenco’s requests for jury instructions, see United States v. Lalley, 257 F.3d 751,
755 (8th Cir. 2001) (instructions as a whole must fairly and adequately submit issues
to jury; court will reverse only if error affected defendant’s substantial rights).

       Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we affirm the judgment of the district
court, and we grant counsel’s motion to withdraw.
                       ______________________________




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