`
`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.
`
`-2-
`
`
`
`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.
`
`-3-
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