United States v. Javier Duenas-Moreno

6 F. App'x 554

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 30, 2001
• Docket: 00-2423
• Status: Unpublished

Opinion

PER CURIAM.

Javier Duenas-Moreno pleaded guilty to illegal reentry into the United States following his previous arrest and deportation as an illegal alien, 8 U.S.C. § 1326 (1994 & Supp. IV 1998), and to possessing a firearm after conviction for a felony and while being an illegal alien, 18 U.S.C. § 922(g)(1), (g)(5) (1994 & Supp. IV 1998). At sentencing, he sought a downward departure from the applicable guideline range on the ground that because of his status as a deportable alien he would suffer adverse consequences while in the custody of the Bureau of Prisons. The District Court 4 denied a downward departure, concluding as a matter of law that it lacked authority to depart on this ground. Duenas-Moreno appeals, arguing that the District Court erred in denying his motion for a downward departure. He argues that the substantial penal burdens imposed on him as a result of his alienage were not contemplated under the sentencing guidelines. We reject this argument. The circumstance Duenas-Moreno asserts to justify a downward departure, ie., his status as a criminally deportable alien, was in fact considered by the Sentencing Commission as a predicate defining element for the applicable guideline, U.S. Sentencing Guidelines Manual § 2L1.2 (2000), and applies to everyone in the same status as the defendant. Thus his status as a deportable alien cannot, as a matter of law, be considered a basis for departure. United States v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th Cir.2001). Moreover, Duenas-Moreno is unable to show that he is burdened by adverse penal consequences different from those imposed upon other deportable aliens sentenced under the same guideline.

The sentence imposed by the District Court is affirmed.

4 . The Honorable Robert Pratt, United States District Judge for the Southern District of Iowa.