85 F.3d 325
UNITED STATES of America, Appellee,v.Enrique CRUZ-OCHOA, Appellant.
No. 95-3393.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 27, 1996.Decided May 9, 1996.
JUDGMENT

1
The above-entitled case is set for oral argument as the third case on Tuesday, March 12, 1996.   It is hereby ORDERED:


2
1) The case be stricken from the calendar and dismissed.


3
2) Our review of the sentencing transcript and record before us leads us to conclude that the district court erred as a matter of law by incorrectly believing that it could not depart downward from the guidelines on the basis of defendant's waiver and consent to administrative deportation upon the filing of a joint motion by the parties for a two-level downward departure at sentencing on defendant's plea of guilty to illegal re-entry.


4
3) The sentence is vacated and the case remanded for resentencing, so that the district court may consider whether departure is warranted.   Whether a downward departure should be granted lies within the sound discretion of the district court.   See U.S. v. Whitetail, 956 F.2d 857 (8th Cir.1992).

