MEMORANDUM**

Arnulfo Carbajal-Zamora appeals his sentence imposed under the United States Sentencing Guidelines (Guidelines), following his guilty plea to a superseding information charging him with being a deported alien found in the United States in violation of 8 U.S.C. Sec. 1326. Carbajal-Zamora contends that (1) the district court erred by not recognizing that it had the authority to depart downward from the Guidelines range, and (2) the sentence was imposed in violation of the eighth amendment.

This court does not have jurisdiction to review a district court's discretionary decision not to depart downwards from the Guidelines. United States v. Sanchez, 914 F.2d 1355, 1363 (9th Cir.1990); United States v. Morales, 898 F.2d 99, 101 (9th Cir.1990).

The district court did not fail to recognize that it had the authority to depart downward. The district court made clear that even considering Carbajal-Zamora's claims of being beaten by Mexicali police, and considering his prior criminal record and the fact that he could have sought safety elsewhere than the United States, a downward departure was not warranted. Thus, the district court exercised its discretion to refuse to depart downward and we are without jurisdiction to review this decision. See Sanchez, 914 F.2d at 1363.

Congress has broad discretion to set the punishment for a crime, and a sentence within statutory limits cannot be overturned as a violation of the eighth amendment unless it is totally out of proportion to the severity of the crime. United States v. Klein, 860 F.2d 1489, 1495 (9th Cir.1988); United States v. Savinovich, 845 F.2d 834, 839-90 (9th Cir.1988); United States v. Vega-Mejia, 611 F.2d 751, 753 (9th Cir.1979). No sentence is per se unconstitutional, and to determine if a sentence violates the eighth amendment it "must be evaluated under objective factors, including the harm to society, the nature of the crime, and the relationship to sentences for similar crimes." Solem v. Helm, 463 U.S. 277, 290 (1983); Klein, 860 F.2d at 1496. "To the extent [the sentence] is reviewable, review is for abuse of discretion." United States v. Cutler, 806 F.2d 933, 937 (9th Cir.1986).

Here, Carbajal-Zamora does not contend that the twenty-four month sentence he received was disproportionate to his crime, but rather that it is cruel and unusual punishment because he is not a threat to society and because he was a victim of torture and extortion by Mexicali police. This argument lacks merit. Carbajal-Zamora was previously convicted of possession of stolen property, forgery, residential burglary and illegal entry into the United States. Furthermore, as the district court noted, Carbajal-Zamora's unsubstantiated claim that the entire Mexicali police department is corrupt did not demonstrate why he could not have sought a safe harbor in places other than the United States. Carbajal-Zamora received the statutory maximum sentence for his offense, and in light of his prior criminal conduct, it does not constitute cruel and unusual punishment. See Solem, 463 U.S. at 290; Vega-Mejia, 611 F.2d at 753.

Thus, the district court did not abuse its discretion and the sentence was not unconstitutionally severe. See Klein, 860 F.2d at 1495-99; Cutler, 806 F.2d at 937; Vega-Mejia, 611 F.2d at 753.

AFFIRMED IN PART AND DISMISSED IN PART.