No. 90-50500.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING,* Senior District Court Judge.

MEMORANDUM**

Martinez appeals his sentence to the statutory maximum of two years for being a deported alien found in the United States. He had been deported in 1990 for possession and sale of narcotics. He had asked for a discretionary departure downward to 10 months from the guidelines range of 21-24 months (actually 21-27 months, but limited by the statutory maximum). He argues that (1) because the court did not state in so many words the basis for a denial of a downward departure the trial court could have been under the misapprehension that a downward departure as requested could not be granted, (2) specifically, the trial court did not address the claim of special circumstances due to conditions in El Salvador, (3) under the circumstances the sentence that was imposed constituted cruel and unusual punishment.

Appellant's argument are without merit. Appellant is not an innocent refugee. He was previously deported for having been involved with a controlled substance. He entered the country illegally. the proper way to seek special immigration treatment is to present oneself to the immigration authorities at the border and make one's case through executive channels.

The court's statements when imposing sentence leave no doubt that the court was aware of the request for downward departure and refused to grant the request. The sentencing court need not make a specific finding that it has authority to depart. United States v. Garcia-Garcia, No. 90-50100 (9th Cir. 3/4/91).

Finally, the two-year sentence does not constitute cruel and unusual punishment.

AFFIRMED.