                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                               ________________

                                  No. 02-3930
                               ________________

United States of America,                *
                                         *
            Appellee,                    *
                                         *      Appeal from the United States
      v.                                 *      District Court for the
                                         *      District of Minnesota.
Sebastian Rodriguez-Favela,              *
                                         *          [PUBLISHED]
            Appellant.                   *

                               ________________

                               Submitted: May 13, 2003
                                   Filed: July 30, 2003
                               ________________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                       ________________

HANSEN, Circuit Judge.

       In October 1999, Sebastian Rodriguez-Favela pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). He was sentenced to
20 months of imprisonment and 3 years of supervised release. One of the special
conditions of his supervised release provided that Rodriguez would comply with the
rules and regulations of the Immigration and Naturalization Service (INS), would not
reenter the United States illegally, and would report to the nearest U.S. Probation
Office within 72 hours of any reentry.
      In 2001, an undercover Minneapolis police officer arrested Rodriguez after
Rodriguez had sold him 1.5 grams of marijuana. During a subsequent interview with
an INS agent, Rodriguez admitted that he was in the country illegally. He
subsequently pleaded guilty to illegal reentry after deportation thereby admitting that
he had also violated the special condition of his supervised released that provided that
he would not illegally reenter the United States. During sentencing, the government
moved for an upward departure on the new illegal reentry conviction. In a combined
sentencing and supervised release revocation hearing, the district court1 denied the
motion and sentenced Rodriguez to consecutive sentences of 30 months of
imprisonment and 3 years of supervised release for the new illegal reentry conviction
and 24 months of imprisonment for the supervised release violation. Rodriguez
appeals only the supervised release revocation sentence.

       On appeal, Rodriguez argues that the government's motion for an upward
departure for the illegal reentry conviction deprived him of his due process rights on
the ground that he had no notice that the government would seek a greater
punishment than that set forth in the plea agreement. This argument has absolutely
no merit and is totally devoid of evidentiary support. The record is totally to the
contrary. The government courtesy-copied a letter dated October 9, 2002, to
Rodriguez's attorney notifying her that the government might seek an upward
departure. (Appellee's App. at A5.) It filed a formal position paper with the court 12
days before the hearing seeking the upward departure. (Id. at B10.) Moreover, the
district court denied the government's upward departure motion and sentenced
Rodriguez within the statutory maximum and within the sentence contemplated in the
plea agreement. Accordingly, we conclude that even absent notice, Rodriguez has
suffered no cognizable injury.




      1
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
                                           2
       Rodriguez also argues that the government's motion for an upward departure
violated his due process rights because the motion influenced the district court to
increase the revocation sentence. We find this argument equally meritless. First,
Rodriguez has adduced no evidence to support his claim. Second, he concedes, as he
must, that the government did not violate the plea agreement in requesting an upward
departure because there was no agreement regarding departures. In addition,
Rodriguez agreed that he could "be sentenced to a consecutive term" for violating his
supervised release. (Add. at B7.) Thus, other than his assertion that he feels that the
government cheated him, Rodriguez has not stated any injury. Nor could he. The 24-
month revocation sentence was within the relevant statutory limitation, see 18 U.S.C.
§ 3583(e) (2000), and also was within the nonbinding, purely advisory, policy
recommendation contained in Chapter 7 of the Sentencing Guidelines, see U.S.
Sentencing Guidelines Manual § 7B1.4 (2002) (providing imprisonment range of 21-
27 months). Absent an abuse of discretion, we will not vacate a revocation sentence
that falls within the maximum limitation stated in § 3583. See United States v.
Holmes, 283 F.3d 966, 968 (8th Cir. 2002). We find not a hint of abuse of discretion
here. Cf. id. (affirming 24-month sentence of district court that fell within statutory
maximum but exceeded the Guidelines' recommended sentence).

      Accordingly, the sentence of the district court is affirmed.

      A true copy.

             Attest:

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




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