IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40876
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS GERARDO BLANDON-ROJAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-79-1
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Luis Gerardo Blandon-Rojas appeals his guilty plea
conviction and sentence for illegal reentry into the United
States following deportation. He asserts that: (1) the district
court erred in denying his motion for a downward departure based
on cultural assimilation due to its mistaken belief that it
lacked authority to so depart and (2) in light of Apprendi v. New
Jersey, 120 S. Ct. 2348 (2000), his indictment was defective
because it did not allege his prior aggravated felony conviction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-40876
-2-
The record in the instant case does not show that the
district court believed that it lacked the authority to depart
downward based on cultural assimilation. Therefore, the district
court’s denial of Blandon’s downward departure motion was not a
violation of law, and this court lacks jurisdiction to review
this issue. See United States v. Yanez-Huerta, 207 F.3d 746, 748
(5th Cir. 2000). Blandon’s appeal of the downward departure
issue is dismissed for lack of jurisdiction. See United States
v. Landerman, 167 F.3d 895, 899 (5th Cir. 1999).
As Blandon concedes, his challenge to the indictment is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
226-27 (1998), which was not overruled by Apprendi, 120 S. Ct. at
2362-63. See United States v. Doggett, 230 F.3d 160, 166 (5th
Cir. 2000), petition for cert. filed (U.S. Jan. 4, 2001) (No.
7819). With respect to this issue, the judgment of the district
court is affirmed.
APPEAL DISMISSED IN PART, AFFIRMED IN PART.