United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1430
                                   ___________

United States of America,             *
                                      *
                   Appellant,         *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Nebraska
Roberto Duran Jauregui,               *
                                      *   [PUBLISHED]
                   Appellee.          *
                                      *
                                   ___________

                             Submitted: August 21, 2002

                          Filed: January 3, 2003
                           ___________
Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

      Roberto Duran Jauregui was born in Mexico in 1950. In 1975, he entered the
United States and has remained here since, residing in Illinois and California, as a
lawful permanent resident of the United States. On August 29, 2001, a jury
convicted Duran of possession with intent to distribute methamphetamine in violation
of 21 U.S.C. § 841. Duran moved for several departures, including a five-level
departure based on his waiver of the right, as a resident alien, to an administrative
deportation hearing. The district court1 granted Duran a four-level downward
departure on that ground. The court then sentenced him to 70 months in prison. The
government appeals this four-level departure arguing that a permanent resident alien’s
waiver of administrative deportation proceedings should not support a downward
departure. We affirm the district court’s downward departure.

       We review a district court’s decision to depart from the guidelines for an abuse
of discretion. See Koon v. United States, 

, 91 (1996).

      Duran correctly claims that, as a lawful permanent resident, he is entitled to the
due process protections of the Fifth Amendment while he is in the United States and
before an order of deportation is entered. Kwong Hai Chew v. Colding, 

, 596 (1953). In the context of an administrative deportation hearing, those
protections include the right to demand the filing of written notice, obtain legal
representation, examine the evidence against him, present evidence, cross examine
the government’s witnesses, appeal the immigration judge’s decision to the Board of
Immigration Appeals, and challenge the constitutionality of removal procedures and
standards. 8 U.S.C. § 1229(a); see also United States v. Sentamu, 

, 131
(2d Cir. 2000) (detailing deportation hearing procedure). A permanent resident is
also exempt from the expedited removal proceedings applicable to other aliens
convicted of aggravated felonies. 8 U.S.C. § 1228(b).

      We have held that “[i]n this circuit a sentencing court may grant a downward
departure under U.S.S.G. § 5K2.0 for a defendant’s willingness to waive resistance


      1
       Judge Robert W. Pratt, United States District Judge for the Southern District
of Iowa, sitting by designation in the District of Nebraska.

                                           2
to deportation, see United States v. Cruz-Ochoa, 

, 325-26 (8th Cir. 1996),
but the decision to depart or not is soundly within the district court’s discretion. See
United States v. Hernandez-Reyes, 

, 803 (8th Cir. 1997).” United States
v. Sera , 

, 874 (8th Cir. 2001). The district court relied upon this
pronouncement in exercising its discretion to depart.2

      The government contends that because it did not join in a motion for a


      2
             The district court reasoned:

      THE COURT:          With respect to the defendant’s argument under
      United States versus Cruz-Ochoa, the Court believes it’s Eighth Circuit
      law that the Court has the legal authority to depart based upon the
      waiver of administrative entitlement to a hearing that the defendant has
      in this case. The defendant – Mr. Duran, I need to ask you a question.
      Your lawyer told me that you voluntarily were waiving your rights to
      any administrative hearing and agree to be deported. Did you talk with
      your lawyer about that?
      THE DEFENDANT:            Yes.
      THE COURT:          And do you agree to be deported without the
      necessity of having a hearing?
      THE DEFENDANT:            Yes.
      THE COURT:          The Court believes that the defendant’s [sic] entitled
      to a reduction based upon Cruz-Ochoa and his waiver of administrative
      hearing. The Court further believes that a copy of the judgment and
      committal should be sent to the Immigration and Naturalization Service
      to inform them the defendant has in open court voluntarily waived his
      right to an administrative hearing. The court is going to reduce the
      guideline sentence by four levels.

Sentencing Transcript, at 34-35.




                                            3
departure based on the defendant’s consent to voluntary deportation, as was the case
in Cruz-Ochoa, the court did not have the authority to depart. See 

(remanding for court to consider a two-level downward departure
based on the parties’ joint motion citing defendant’s waiver and consent to
administrative deportation). However, this court has previously rejected the argument
that both the government and the defendant must join in the motion for departure.
See United States v. Garlich, 

, 63 (8th Cir. 1991) (“A government
motion is not a prerequisite to a departure based on unusual circumstances.”).
Moreover, we have stated before that the district court has “the authority to depart
downward on the basis that [the defendant has] consented to an administrative
deportation.” 

(citation omitted).3 We conclude
a waiver of the administrative deportation proceeding due a resident alien is a


      3
        In an unpublished decision, we affirmed a district court’s decision to
depart based on defendant’s consent to voluntary deportation:

      If consent to voluntary deportation is a permissible ground for
      departure when the government has entered into a stipulation with the
      defendant, it does not transform into an impermissible ground–i.e.,
      one based on the ‘forbidden’ factor of national origin–merely because
      the government does not join in the filing of the departure motion.
      Furthermore, the government’s argument that consent to voluntary
      deportation is not a factor which will remove a particular defendant’s
      case outside the heartland of cases is similarly foreclosed by our
      decisions in Cruz-Ochoa and Hernandez-Reyes.

United States v. Ramirez-Bernal, 

, 

, at *2 (8th Cir.
1999) (unpublished table decision). The Ramirez-Bernal court continued: “[W]e
believe . . . that the government’s position that a court cannot depart downward
without a joint stipulation does not find support in the law of this circuit.” 

But see United States v. Marin-Castaneda, 

, 556
(3d Cir. 1998) (“The recommendation of the United States Attorney, while it may
not be sufficient to convince a district court to depart downward on this basis
[waiver of deportation hearing], is at least necessary for such a decision.”).

                                         4
sufficient basis for departure, notwithstanding the government’s decision not to join
the motion. Duran, as a resident alien, gave up substantial rights in waiving an
administrative deportation hearing, and it was within the sound discretion of the
district court to conclude that in doing so he has substantially assisted in the
administration of justice.

       It is unclear as to whether the government is also appealing the extent of the
departure. In any event, we conclude that the district court did not abuse its
discretion. A four-level departure is certainly at the outer limits of the extent of a
departure under these circumstances. However, we cannot conclude that the
government has shown an abuse of the district court’s discretion in determining the
extent of the departure.

      Accordingly, we affirm the sentence imposed by the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          5