United States v. Melayne R. Danekas

1 The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota, sitting by designation.
2 The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2242
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Angel Albert Rodriguez, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 12, 2001
Filed: January 11, 2002
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Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and BATTEY, 1 District
Judge.
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PER CURIAM.
Angel Albert Rodriguez pled guilty to conspiracy to distribute
methamphetamine and to distribution of methamphetamine within 1000 feet of a
school. At sentencing, the district court2 calculated his sentencing guidelines

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imprisonment range to be 97-121 months. Rodriguez filed a motion for a downward
departure based upon the disparate treatment of non-U.S. citizens within the Bureau
of Prisons (BOP). Specifically, as a deportable alien, he cannot receive a one-year
reduction of his prison time upon successful completion of a drug treatment program
and is ineligible for release to a halfway house during the last six months of his prison
sentence. The district court denied the motion and sentenced Rodriguez to 97
months’ imprisonment. Rodriguez appeals, and we affirm.
A district court’s refusal to depart downward is reviewable on appeal only if
the district court was not aware of its authority to consider a downward departure.
United States v. Knight, 58 F.3d 393, 398 (8th Cir. 1995). Here, the district court
acknowledged the collateral consequences of the different circumstances flowing
from the fact of alienage and concluded that those collateral consequences are not
generally sufficient to justify a departure. We read the court’s comments as an
acknowledgment of its authority to grant a downward departure to someone in
Rodriguez’s circumstances and as its decision that no departure was warranted in
Rodriguez’s case. That discretionary decision is not subject to review. See, e.g.,
United States v. Bahena, 223 F.3d 797, 807 (8th Cir. 2000); United States v. Navarro,
218 F.3d 895, 897 (8th Cir. 2000).
Even if we were to review the district court’s decision not to depart, we would
conclude that no departure would be warranted here. In United States v. Lopez-Salas,
266 F.3d 842 (8th Cir. 2001), we held that courts may grant a downward departure
based on the fact that a deportable alien is not eligible for early release, but only if
there are “additional facts concerning the defendant’s individual circumstances to
make the particular case atypical or unusual.” Id. at 848. We see nothing in the
record that would support a finding that Rodriguez’s case is atypical or unusual.
Rodriguez relies solely on the disparate treatment common to all deportable aliens as
the basis for his downward departure motion. Under our holding in Lopez-Salas,
such a contention is insufficient to carry the day.

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The sentence is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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