                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          AUG 21 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-2114
                                                   (D.C. No. CR-95-574-LH)
    GUSTAVO GONZALEZ-                                     (D. N.M.)
    DOMINGUEZ,

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant Gustavo Gonzalez-Dominguez appeals the sentence imposed by

the district court after he pled guilty to one count of importation of more than 100

kilograms of marijuana into this country from Mexico as well as one count of

possession and one count of intent to distribute the marijuana. His original

offense level was thirty-six which was reduced by nine levels, resulting in a

sentence of twenty-four months on each count to be served concurrently. Prior to

sentencing, Mr. Gonzalez-Dominguez sought a further reduction in his offense

level due to the fact that he had admitted his illegal status and obtained a final

order of deportation. The district court declined to grant any further reduction

and Mr. Gonzalez-Dominguez appeals.

      The government has filed a motion to dismiss this appeal asserting that we

lack jurisdiction to review a district court’s decision not to grant a downward

departure unless the court clearly indicates it declined to depart because it lacked

the power to do so. As the district court here clearly knew it could depart, this

exception to the general rule of nonreviewability is not applicable.

      While “[w]e have no jurisdiction to review a district court's discretionary

refusal to depart downward from the guidelines[,]” we do have jurisdiction to

review a defendant’s constitutional challenge to the guidelines, as well as

challenges involving questions of law pertaining to the interpretation and




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application of the guidelines. United States v. LeRoy, 984 F.2d 1095, 1096 (10th

Cir. 1993). We review such challenges de novo. See id.

       Mr. Gonzalez-Dominguez challenges the constitutionality of the guidelines

as applied to him. As we have jurisdiction to review this issue, we deny the

government’s motion to dismiss.

       The government argues that Mr. Gonzalez-Dominguez waived his

constitutional argument because he did not raise it to the district court.

Generally, we do not consider arguments raised for the first time on appeal. See

Hicks v. Gates Rubber Co., 928 F.2d 966, 970 (10th Cir. 1991).

       Mr. Gonzalez-Dominguez argues he was denied equal protection and due

process because the United States Attorney’s office has “routinely” supported a

downward departure in other cases where the illegal alien has obtained a final

order of deportation. He contends that this argument was “implicit” in his

assertion to the district court that he should be afforded a downward departure

because the government offers such departures to other illegal aliens. We reject

Mr. Gonzalez-Dominguez’ argument that he implicitly raised this argument before

the district court.

       At sentencing, Mr. Gonzalez-Dominguez stated only that a final deportation

order is routinely used in other cases as a basis to grant a downward departure.

See R. Vol. III at 6. He did not alert the district court that he was asserting a


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claim based on equal protection and due process concerns. Thus, he has waived

this argument.

      We will consider an argument raised for the first time on appeal “only in

the most unusual circumstances.” Lyons v. Jefferson Bank & Trust, 994 F.2d

716, 721 (10th Cir. 1993). "Plain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court." Fed.

R. Crim. P. 52(b). The plain error doctrine, however, "is to be used sparingly,

solely in those circumstances in which a miscarriage of justice would otherwise

result." See, e.g., United States v. Young, 470 U.S. 1, 15 (1985) (quotation

omitted).

      The district court’s refusal to grant a downward departure was not plain

error. The government stated that downward departures based on the fact that the

alien has obtained a final order of deportation are granted only to those illegal

aliens who are being prosecuted for illegal reentry following a prior deportation.

That is not the case here. Mr. Gonzalez-Dominguez was being prosecuted for

possession, importation, and intent to distribute marijuana. The government’s

interest in having Mr. Gonzalez-Dominguez serve a term of imprisonment as

punishment for these crimes, which are unrelated to his illegal entry into this

country, is clear. Further, Mr. Gonzalez-Dominguez had already been granted a

nine level reduction.


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      We conclude that not only did Mr. Gonzalez-Dominguez waive his

constitutional argument by failing to raise it below, no miscarriage of justice will

result by our refusal to consider his argument on appeal because he can

demonstrate no error, and hence, no plain error.

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. Appellee’s motion to dismiss is DENIED.



                                                     Entered for the Court



                                                     James E. Barrett
                                                     Senior Circuit Judge




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