UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 95-5844
GUILLERMO JOSE GONZALEZ,
a/k/a G. G.,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 95-5845

VICTOR VINICIO ENCARNACION,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
Jackson L. Kiser, Chief District Judge.
(CR-94-39)

Submitted: June 18, 1996

Decided: July 12, 1996

Before LUTTIG and MICHAEL, Circuit Judges, and PHILLIPS,
Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Randy V. Cargill, Roanoke, Virginia; Willis J. Spaulding, Charlottes-
ville, Virginia, for Appellants. Robert P. Crouch, Jr., United States
Attorney, Joseph W. H. Mott, Assistant United States Attorney,
Shelby Katz, Third-year Law Intern, Eric Chaffin, Third-year Law
Intern, Roanoke, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Guillermo Jose Gonzalez and Victor Vinicio Encarnacion both
entered guilty pleas to one count of conspiracy to distribute cocaine,
21 U.S.C.A. § 846 (West Supp. 1996), pursuant to plea agreements.
Gonzalez also agreed to pay $25,000 in lieu of forfeiture of his prop-
erty. Gonzalez was sentenced to a term of 50 months imprisonment;
Encarnacion received a sentence of 90 months imprisonment. Both
appeal their sentences. Gonzalez contends that the district court failed
to recognize its authority to depart on the grounds he put forward at
sentencing. Encarnacion, a citizen of the Dominican Republic, argues
that the court erred in giving him two criminal history points for a
prior sentence for illegal entry. We affirm.

Gonzalez requested a departure below the guideline range based on
his extraordinary family situation (he has a schizophrenic son who
lives at home) and his contributions to his community (he had been
instrumental in the creation of a community garden on his block in
Brooklyn). When a sentencing court exercises its discretion not to
depart, its decision is not reviewable by the appeals court. United
States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.), cert. denied, 498 U.S.
819 (1990). However, when the court refuses to depart because of a
perceived lack of legal authority to depart, the defendant may appeal.
United States v. Hall, 977 F.2d 861, 863 (4th Cir. 1992).

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Both family circumstances and contributions to the community are
identified in policy statements as "not ordinarily relevant" to a deter-
mination of whether the sentence should be outside the guideline
range. USSG §§ 5H1.6, 5H1.11, p.s. The language of the policy state-
ments clearly authorizes the sentencing court to depart on these
grounds when the court finds that truly extraordinary circumstances
are present. Our examination of the record discloses that the district
court recognized that a departure could be made in extraordinary cir-
cumstances. Construing the district court's statements in the light
most favorable to Gonzalez, see Hall, 977 F.2d at 863, there is noth-
ing in the record to support Gonzalez's contention that the court
found that a departure could never be made on these grounds. Rather,
the record discloses that the court exercised its discretion not to depart
in this case.

Encarnacion's criminal history calculation included two criminal
history points for a prior sentence of 1 year and 1 day for illegal entry.
The probation officer reported in the presentence report that Encarna-
cion, a native of the Dominican Republic, entered the country ille-
gally from Puerto Rico in 1985 and was deported after serving 9
months of his sentence. The report further stated that Encarnacion
again entered the country illegally in 1990, but in 1991 was granted
amnesty and received permission to remain in the country with a
work permit. At the sentencing hearing, defense counsel argued that
Encarnacion had received a general amnesty in 1991 which func-
tioned as a pardon of the 1985 illegal entry offense. He argued that
no criminal history points should be assessed for the sentence. The
district court did not agree that an amnesty would eradicate the illegal
entry conviction and found that the points were correctly given.
Encarnacion was sentenced to a term of 90 months.

Two criminal history points are added for each prior sentence of
imprisonment of at least sixty days but less than one year and one
month which was imposed within ten years of the commencement of
the instant offense. USSG §§ 4A1.1(b), 4A1.2(e)(2). Sentences for
convictions which have been set aside or for which the defendant has
been pardoned are counted; expunged sentences are not counted.
USSG § 4A1.2, comment. (n.10). Encarnacion argues that, because he
obtained a work permit, his prior illegal entry conviction should be
viewed as a minor, excludable offense similar to juvenile status

                     3
offenses. See USSG § 4A1.2(c)(2). Encarnacion also argues that the
prior sentence should not be considered because it was imposed
nearly ten years earlier. Finally, Encarnacion suggests that to increase
the penalty for his current drug offense because of a prior "offense
based on alienage" may be discriminatory and may violate due pro-
cess.

Encarnacion has advanced no legitimate reason why the prior sen-
tence should not have been counted. The sentence has not been
expunged and was imposed within ten years of the commencement of
the conspiracy to which he pled guilty. His disregard of the immigra-
tion laws, not his alien status, is the reason for the increased punish-
ment he faces. Therefore, we affirm his sentence.

For the reasons discussed, both sentences are affirmed. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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