                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 10-2373
                                   ___________

United States of America,               *
                                        *
             Plaintiff - Appellee,      * On Appeal from the United
                                        * States District Court for the
      v.                                * District of Minnesota.
                                        *
Sergio Fierros Lozada,                  * [UNPUBLISHED]
also known as Jimmy,                    *
                                        *
             Defendant - Appellant.     *
                                   ___________

                             Submitted: October 18, 2010
                                Filed: October 21, 2010
                                 ___________

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

PER CURIAM.

       Sergio Fierros Lozada pled guilty to one count of conspiracy to distribute and
possess with intent to distribute 5 kilograms or more of cocaine and 50 grams or more
of methampetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
Granting the government’s motion for a downward departure for substantial
assistance, the district court1 sentenced Fierros Lozada to 60 months in prison, below



      1
       The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
the guideline range of 135 to 168 months. Fierros Lozada appeals, asserting
procedural error. This court affirms.

       In the plea agreement, Fierros Lozada admitted serving as a courier in a drug-
trafficking organization. He maintained the residence where the organization stored
controlled substances and a number of firearms – the “stash.” He regularly obtained
drugs from the stash, delivered them to co-conspirators, and collected money from the
sales. He admitted accountability for the sales of between 15 and 50 kilograms of
cocaine, 3,007.37 grams of methampetamine, and the possession of a number of
firearms. The parties agreed that Fierros Lozada’s total offense level was 33 and his
criminal history was Category I. The district court calculated an (undisputed)
guideline range of 135 to 168 months. Fierros Lozada was subject to a mandatory
minimum of 120 months, and was ineligible for safety-valve relief because he
possessed firearms in furtherance of the conspiracy. The government moved under
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) for a downward departure due to Fierros
Lozada’s substantial assistance in the prosecution of co-conspirators. He requested
a sentence of one year and one day, based on the government’s motion and on his
status as an illegal immigrant subject to removal upon completion of his sentence.
The court granted the government’s motion but departed downward only to a sentence
of 60 months’ imprisonment.

      Fierros Lozada argues for the first time on appeal that the district court
committed procedural error by failing to explain adequately its downward departure
from the guideline range, and by failing to consider his status as an illegal immigrant
in applying the 18 U.S.C. § 3553(a) factors. While he asserts procedural error, his
claim is construed more properly as a challenge to the extent of the downward
departure awarded by the district court. See United States v. Billue, 576 F.3d 898, 905
(8th Cir.), cert. denied, 130 S. Ct. 765 (2009). “Absent an allegation that the district
court was motivated by an unconstitutional motive in arriving at its downward
departure, we may not review ‘the extent of ‘such a downward departure in the

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defendant’s favor.” Id., quoting United States v. Dalton, 478 F.3d 879, 881 (8th Cir.
2007). This court cannot review Fierros Lozada’s ostensible procedural claim,
because he does not allege that the extent of the district court’s downward departure
was motivated by an unconstitutional motive.

      The judgment of the district court is affirmed.
                       ___________________________




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