                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3542
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Jose Luis Rios-Muro,                     *
                                         * [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                              Submitted: January 12, 2006
                                 Filed: January 12, 2006
                                  ___________

Before ARNOLD, BYE, and SMITH, Circuit Judges.
                            ___________

PER CURIAM.

       Jose Luis Rios-Muro appeals the sentence the district court1 imposed following
his guilty plea to illegally reentering the United States after having been convicted of
an aggravated felony (burglary) and deported, in violation of 8 U.S.C. § 1326(a) and
(b)(2). Rios-Muro argues that the district court should have departed downward based
on overstated criminal history and based on cultural assimilation. He also argues that
the district court impermissibly double counted the burglary conviction, by using it
both to enhance his base offense level and to compute his criminal history.

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
       These arguments fail. First, the district court’s decision not to grant a
downward departure based on overstated criminal history is unreviewable. See United
States v. Frokjer, 415 F.3d 865, 874 (8th Cir. 2005) (denial of downward departure
is unreviewable unless district court had unconstitutional motive or erroneously
believed it lacked authority to depart). Second, Rios-Muro did not move below for
a departure based on cultural assimilation, and the district court did not plainly err in
not departing sua sponte. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir.
1993) (en banc) (standard of review). Third, the district court did not err in
considering Rios-Muro’s burglary conviction in computing both his offense level and
his criminal history. See U.S.S.G. § 2L1.2, comment. (n.6) (“conviction taken into
account under . . . [U.S.S.G. § 2L1.2(b)(1)] is not excluded from consideration of
whether that conviction receives criminal history points”); cf. United States v. Dyck,
334 F.3d 736, 740 (8th Cir. 2003) (in illegal-reentry case, defendant’s prior
drug-trafficking conviction could be used both to enhance his base offense level
pursuant to § 2L1.2(b)(1) and to compute his criminal history category).

      Accordingly, we affirm.
                     ______________________________




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