Patrice Greer v. St. Louis Regional

1The Honorable Mark W. Bennett, Chief Judge, United States District Court for
the Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2804
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Luis Manuel Garcia-Moreno, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 6, 2001
Filed: July 26, 2001
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Before BOWMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Luis Manuel Garcia-Moreno pleaded guilty to a one-count indictment charging
him with being found in the United States after deportation, see 8 U.S.C. § 1326 (1994
& Supp. IV 1998). At sentencing, Garcia-Moreno moved for a downward departure
based on the effect of his deportable-alien status on the conditions of his incarceration.
The District Court1 denied the motion and sentenced Garcia-Moreno to forty-three
months' imprisonment and three years of supervised release. On appeal, counsel has

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filed a brief and moved to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967), arguing only that the District Court erred in refusing to depart. Garcia-Moreno
has not filed a pro se supplemental brief.
We do not have authority to review a district court’s discretionary decision to
deny a departure. See United States v. Correa, 167 F.3d 414, 417 (8th Cir. 1999).
Moreover, a district court lacks authority to depart downward based on a defendant's
deportable-alien status. United States v. Cardosa-Rodriguez, 241 F.3d 613, 614 (8th
Cir. 2001) (holding that defendant's alien status is an element of the crime defined by
§ 1326 and thus cannot be a factor not adequately considered by the Sentencing
Commission in formulating the applicable sentencing guideline, U.S.S.G. § 2L1.2
(2000)). Accordingly, the District Court as a matter of law had no discretion to
exercise in denying the downward-departure motion.
Following our independent review, see Penson v. Ohio, 488 U.S. 75 (1988), we
find no nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw and
affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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