                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-2272
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the
      v.                                 * Southern District of Iowa.
                                         *
Jose Yanez-Dominguez,                    *       [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: May 15, 2001
                                  Filed: May 30, 2001
                                   ___________

Before BOWMAN, Circuit Judge, BOGUE,1 and MAGNUSON,2 District Judges.3
                              ___________

PER CURIAM.




      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
      2
        The Honorable Paul A. Magnuson, Chief Judge, United States District Court
for the District of Minnesota, sitting by designation.
      3
        Pursuant to 28 U.S.C. § 46(b), the Chief Judge certified the existence of a
judicial emergency necessitating the designation of a panel consisting of fewer than two
members of the Court of Appeals.
        Jose Yanez-Dominguez appeals from a sentence based upon his conviction for
illegally reentering the United States following earlier deportation for a felony
conviction, 8 U.S.C. § 1326(b) (1994 & Supp. IV 1998).

       At sentencing, the District Court4 denied, as a matter of law, Yanez-Dominguez's
motion for a downward departure on his claim that his status as a deportable alien
would result in adverse treatment while he was in the custody of the Bureau of Prisons.
Yanez-Dominguez argues that the District Court erred in concluding it lacked authority
to depart from the applicable sentencing guidelines range on this ground. We disagree.
The District Court was correct in ruling that the defendant's status as a deportable alien
was in fact considered by the Sentencing Commission, is an integral part of the
guideline prescribed for the defendant's crime, and therefore, as a matter of law, cannot
be considered a basis for departure. United States v. Cardosa-Rodriguez, 241 F.3d
613, 614 (8th Cir. 2001).

       Yanez-Dominguez also argues that the District Court should have granted a
downward departure based on his cultural assimilation and also based on application
note 5 to U.S. Sentencing Guideline § 2L1.2(b)(1)(a). Inasmuch as the District Court
rejected these other grounds for departure in an exercise of its discretion, the court's
decision is unreviewable. See United States v. Turechek, 138 F.3d 1226, 1228 (8th
Cir. 1998).

       Yanez-Dominguez further argues that his prior felony conviction is an element
of his present offense of conviction under 8 U.S.C. § 1326(b) and is not merely a
sentence enhancement. His brief candidly acknowledges that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224 (1998), which was
not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000), as well as by our


      4
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
                                           -2-
Circuit's post-Apprendi decision in United States v. Aguayo-Delgado, 220 F.3d 926,
932 n.4 (8th Cir.), cert. denied, 121 S. Ct. 600 ( 2000). The brief also forthrightly
states that he simply "has raised this issue in an adversarial fashion so as to preserve
his claim for further review." We are, of course, bound by both Almendarez-Torres
and Aguayo-Delgado, and we necessarily reject his pro forma argument that his
sentence should be vacated and the case remanded for resentencing.

      The sentence imposed by the District Court is affirmed.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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