[NOT FOR PUBLICATION -- NOT TO BE CITED AS PRECEDENT]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, 

, 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, 

, 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, 

, 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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