[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1241
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
SILO DIAZ-PAULINO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Daniel R. Domínguez, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin and Campbell, Senior Circuit Judges.
Raymond L. Sanchez Maceira, by Appointment of the Court, on
brief for appellant.
Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant U.S. Attorney, and Thomas F. Klumper,
Assistant U.S. Attorney, on brief for appellee.
June 27, 2001
Per curiam. Appellant Silo Diaz-Paulino seeks dismissal of
a criminal complaint charging him with illegal reentry into the
United States, see 8 U.S.C. § 1326(b)(2), on the ground that his
first appearance before a magistrate occurred more than 48 hours
after his warrantless arrest, in violation of Federal Rule of
Criminal Procedure 5(a). He also argues that the district court
erred by refusing his request for a downward departure in his
sentence. Neither argument is viable on appeal.
Appellant did not raise the Rule 5(a) issue before the
district court, and it consequently is subject to plain error
review. United States v. Paradis, 219 F.3d 22, 25 (lst Cir.
2000). Even under a more lenient standard, however, the
argument would be futile. We previously have held that §
1326(b)(2) is a status offense that does not trigger the
protections of Rule 5(a) until the criminal process has been
initiated against the detained alien. See United States v.
Encarnacion, 239 F.3d 395, 399 (lst Cir. 2001). In a separate
decision issued today, we explain the circumstances in which an
alien who is detained civilly in connection with a status
offense may challenge his detention. See United States v.
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Tejada, No. 00-1241, slip op. at 5-6 (June 27, 2001). Here, as
there, there is no evidence of a pretextual detention and thus
no basis under Rule 5(a) to consider dismissing the charge
against him.1
Appellant's sentencing argument is similarly meritless. A
district court's discretionary refusal to depart downward under
the Sentencing Guidelines is unreviewable on appeal. United
States v. Patrick, 248 F.3d 11, 28 (lst Cir. 2001). The record
clearly shows that the court understood its authority to depart,
but chose not to do so. Accordingly, we are without
jurisdiction to review its judgment.
The judgment of the district court is therefore affirmed.
1 We note that the proceedings here occurred more
expeditiously than in Tejada's case. Diaz was interviewed by an
officer of the Immigration and Naturalization Service (INS) the
day after his arrest, and he was brought before a magistrate
judge for an initial appearance seven days later, more than a
week sooner than Tejada was given such a hearing.
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