                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-4134
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Northern District of Iowa
Guillermo Mendoza-Tinajero,              *
                                         *    [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: January 3, 2000

                                Filed: January 13, 2000
                                    ___________

Before McMILLIAN, HEANEY, and MORRIS SHEPPARD ARNOLD, Circuit
      Judges.
                          ___________

PER CURIAM.

       Guillermo Mendoza-Tinajero appeals from the final judgment entered in the
District Court1 for the Northern District of Iowa after he pleaded guilty to being
unlawfully present in the United States in 1998 following deportation, in violation of
8 U.S.C. § 1326(a) and (b). The district court sentenced appellant to 50 months
imprisonment. For reversal, counsel filed a brief pursuant to Anders v. California, 386

      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
U.S. 738 (1967), suggesting the district court erred in not granting Mendoza-Tinajero
a downward departure. Mendoza-Tinajero filed a pro se supplemental brief in which
he seems to argue his 1997 deportation was based on a 1995 drug offense that
preceded the Antiterrorism and Effective Death Penalty Act (AEDPA), the terms of
which cannot be applied to him retroactively; he was entitled in 1997 to a voluntary
departure with the opportunity to reenter legally; he was punished three times for his
1995 drug offense; and his present sentence should be based only on his illegal reentry.
For the reasons discussed below, we affirm the judgment of the district court.

      Prior to sentencing, the district court heard Mendoza-Tinajero’s motion for a
downward departure based on U.S.S.G. §§ 2L1.2, comment. (n.5), and 5K2.0 (1997).
The district court denied the motion, stating,

      I’m not inclined to grant a downward departure motion for a drug
      defendant who comes back into the country, and I have discretion, and I
      think we need to send a message that people who are convicted of drug
      offenses [and] who are deported . . . and reenter will not be treated
      leniently in this court.

(Sent. Tr. at 9.) These remarks indicate the court elected not to depart as a
discretionary matter based on the facts of the case; hence, its decision not to depart is
unreviewable. See United States v. Turechek, 138 F.3d 1226, 1228 (8th Cir. 1998).

       The issues set out in the pro se supplemental brief were not raised in the district
court. We thus review them for plain error, and find none. See United States v.
Merritt, 982 F.2d 305, 306 (8th Cir. 1992), cert. denied, 508 U.S. 979 (1993). To the
extent he may be trying to do so, Mendoza-Tinajero cannot contest his 1997
deportation in this appeal. Insofar as Mendoza-Tinajero challenges the alleged
retroactive application of AEDPA, or the use of his 1995 drug offense to enhance his
sentence, these arguments fail because the district court sentenced him for the 1998
offense of illegal reentry, not for drug trafficking. See U.S.S.G. Ch. 4, Pt. A, intro.

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comment. (1997) (defendant’s past crimes are “directly relevant” to sentencing under
Guidelines); United States v. Baca-Valenzuela, 118 F.3d 1223, 1231 (8th Cir. 1997)
(rejecting defendant’s ex post facto argument because § 1326 punishes offense of
reentry, not underlying criminal offense); United States v. Thomas, 930 F.2d 12, 14
(8th Cir. 1991) (use of prior crimes to enhance sentence does not violate Double
Jeopardy Clause).

      After reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75
(1988), we find no other nonfrivolous issues. Accordingly, we affirm.

      A true copy.

            Attest:

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




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