                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                 ___________

                                 No. 02-4079
                                 ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       * Appeal from the United States
       v.                              * District Court for the
                                       * District of Nebraska.
Salvadore Davila-Marin, also known as *     [UNPUBLISHED]
Ricardo Diaz, also known as Ricardo *
Diaz-Martinez, also known as Salvador *
Julian Davila-Marin, also known as     *
Salvador Davila, also known as Julian *
Salvador, also known as Julian Davila- *
Salvador, also known as Salvador       *
Davila Marin, also known as Julian     *
Davila Salvador,                       *
                                       *
             Appellant.                *
                                 ___________

                        Submitted: July 2, 2003
                            Filed: July 18, 2003
                                 ___________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
                          ___________

PER CURIAM.
       In this direct criminal appeal, Salvadore Davila-Marin challenges the sentence
the district court1 imposed after he pleaded guilty to illegally re-entering the United
States after deportation, following a conviction for an aggravated felony, in violation
of 8 U.S.C. § 1326(a) and (b)(2). Finding that the Guidelines calculations
overrepresented his criminal history, the district court granted Davila-Marin’s motion
for a downward departure, reducing his criminal history from Category IV to
Category III. The court overruled Davila-Marin’s motion to reduce his offense level,
however, and sentenced him to 30 months of imprisonment and 3 years of supervised
release. On appeal, Davila-Marin’s counsel has moved to withdraw under Anders v.
California, 386 U.S. 738 (1967), arguing that the district court erred in calculating his
criminal history, by departing only one criminal history category, and by not
departing to a lower offense level.

       We conclude that the district court’s discretionary decisions not to further
reduce Davila-Marin’s criminal history category and not to grant a downward
departure from his offense level are both unreviewable. See United States v. Darden,
70 F.3d 1507, 1549 (8th Cir. 1995) (court’s discretionary decision not to depart is
unreviewable if court is aware of its authority to depart), cert. denied, 517 U.S. 1149,
and cert. denied, 518 U.S. 1026 (1996); United States v. Dutcher, 8 F.3d 11, 12 (8th
Cir. 1993) (extent of downward departure is unreviewable, regardless of reasons for
refraining from departing further). As to counsel’s argument concerning the criminal
history points, assuming that the matter is reviewable, we conclude that the district
court did not clearly err in assigning 2 criminal history points for Davila-Marin’s 70-
day sentence for driving while intoxicated, even if he actually served less than 30
days on that sentence. See U.S.S.G. §§ 4A1.1(b) (2 criminal history points are
assigned for each prior sentence of at least 60 days), 4A1.2, comment. (n.2) (criminal
history points are based on sentence imposed, not length of time actually served);


      1
       The Honorable Joseph F. Battaillon, United States District Judge for the
District of Nebraska.
                                           -2-
United States v. Lopez-Arce, 267 F.3d 775, 782-83 (8th Cir. 2001) (standard of
review).

      Following careful review of the record, we find no other nonfrivolous issues.
See Penson v. Ohio, 488 U.S. 75, 80 (1988). Accordingly, the judgment is affirmed.
We also grant counsel’s motion to withdraw.

      A true copy.

            Attest:

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




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