                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1323
                                    ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the District
                                       * of Minnesota.
Elio Hernandez, also known as          *
Marcos, also known as Marco, also      * [UNPUBLISHED]
known as Christian Hernandez-Seldana, *
                                       *
            Defendant - Appellant.     *
                                  ___________

                              Submitted: November 19, 2009
                                 Filed: December 10, 2009
                                  ___________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ___________

PER CURIAM.

       Elio Hernandez pled guilty to conspiracy to distribute and to possess with intent
to distribute one kilogram or more of heroin and a detectable amount of cocaine. 21
U.S.C. §§ 841(a)(1), (b)(1)(A). At sentencing, the district court1 found Hernandez had
a criminal history category III based on two prior convictions and a total offense level
of 39, which resulted in an advisory guideline range of 324-405 months. The court


      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
denied Hernandez's motion for a downward departure based on his claim that his
criminal history was overstated and sentenced him to 360 months. Hernandez appeals
his sentence. We affirm.

        Hernandez asserts that the district court erred in determining that he was
responsible for more than 30 kilograms of heroin when calculating his base offense
level. Specifically Hernandez argues that the court's determination was based on
speculation and unreliable testimony. We review the district court's factual finding
of drug quantity for clear error and "will reverse a determination of drug quantity only
if the entire record definitely and firmly convinces us that a mistake has been made."
United States v. Minnis, 489 F.3d 325, 329 (8th Cir. 2007).

       At the sentencing hearing, the lead federal agent in the investigation testified
that Hernandez's drug trafficking organization had sold between 15 and 30 kilograms
of heroin per year for two to three years. A second agent testified about the drug
transactions he overheard while monitoring Hernandez's business telephone. The
government also presented the testimony of five of Hernandez's customers and two
codefendants, all of whom testified about the frequency and quantity of the drug
transactions by his organization. See United States v. Sarabia-Martinez, 276 F.3d 447,
450 (8th Cir. 2002) (sentencing court may determine drug quantity based on testimony
of coconspirator alone); United States v. Patterson, 258 F.3d 788, 790-91 (8th Cir.
2001) (court may consider drug transactions which were part of regular pattern or
scheme of drug activity). A conservative drug quantity estimate drawn from the
witnesses' testimony falls well above the 30 kilogram quantity used to establish
Hernandez's base offense level. We conclude that the district court did not clearly err
in finding the drug quantity attributable to Hernandez.

      Hernandez also argues that the district court abused its discretion by declining
to grant a downward departure based on his overstated criminal history. We have
consistently held that a district court's decision not to depart downward is

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"unreviewable unless the district court had an unconstitutional motive or erroneously
thought that it was without authority to grant the departure." United States v. Phelps,
536 F.3d 862, 868 (8th Cir. 2008). Hernandez does not allege an unconstitutional
motive and concedes that the district court recognized its authority to depart
downward from the applicable guidelines range. Accordingly, the court's decision not
to depart downward is unreviewable. The record reflects that the district court
committed no procedural error and imposed a reasonable sentence.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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