IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40848
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES RAY WELCH, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-110-1
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August 23, 2001
Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.
PER CURIAM:*
Charles Ray Welch argues that the district court erred at
sentencing in determining that it did not have the authority to
depart downward below the minimum statutory penalty pursuant to
U.S.S.G. § 5K2.0, p.s., and § 5K2.11, p.s.
“A refusal to grant a downward departure is a violation of
law only if the court mistakenly assumes that it lacks authority
to depart.” See United States v. Yanez-Huerta, 207 F.3d 746, 748
(5th Cir.), cert. denied, 121 S. Ct. 432 (2000) (citation
omitted). A district court is authorized to depart below the
*
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that this opinion should not be published and is not precedent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. 00-40848
-2-
minimum statutory penalty only if the Government files a motion
for downward departure that reflects the defendant’s substantial
assistance. See United States v. Cerverizzo, 74 F.3d 629, 633
(5th Cir. 1996); United States v. Alvarez, 51 F.3d 36, 39 (5th
Cir. 1995).
Because the Government did not file a motion for downward
departure showing that Welch had provided it with substantial
assistance, the district court correctly determined that it did
not have the authority to depart below the minimum statutory
penalty.
As Welch concedes, his argument that his sentence was
improperly enhanced under 18 U.S.C. § 924(e) because the jury did
not determine that he had three prior felony convictions is
foreclosed by the holding in Almendarez-Torres v. United States,
523 U.S. 224, 235 (1998), that a sentencing enhancement factor is
not an element of the offense that must be proved beyond a
reasonable doubt at trial.
AFFIRMED.