                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2804
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa.
Luis Manuel Garcia-Moreno,                *
                                          *      [UNPUBLISHED]
             Appellant.                   *
                                     ___________

                            Submitted: July 6, 2001
                                Filed: July 26, 2001
                                    ___________

Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                          ___________

PER CURIAM.

      Luis Manuel Garcia-Moreno pleaded guilty to a one-count indictment charging
him with being found in the United States after deportation, see 8 U.S.C. § 1326 (1994
& Supp. IV 1998). At sentencing, Garcia-Moreno moved for a downward departure
based on the effect of his deportable-alien status on the conditions of his incarceration.
The District Court1 denied the motion and sentenced Garcia-Moreno to forty-three
months' imprisonment and three years of supervised release. On appeal, counsel has


      1
       The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), arguing only that the District Court erred in refusing to depart. Garcia-Moreno
has not filed a pro se supplemental brief.

       We do not have authority to review a district court’s discretionary decision to
deny a departure. See United States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999).
Moreover, a district court lacks authority to depart downward based on a defendant's
deportable-alien status. United States v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th
Cir. 2001) (holding that defendant's alien status is an element of the crime defined by
§ 1326 and thus cannot be a factor not adequately considered by the Sentencing
Commission in formulating the applicable sentencing guideline, U.S.S.G. § 2L1.2
(2000)). Accordingly, the District Court as a matter of law had no discretion to
exercise in denying the downward-departure motion.

       Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and
affirm.

      A true copy.

             Attest:

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




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