IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-40271
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RAUL RENDON-RODRIGUEZ
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
No. L-01-CR-754-ALL
_________________________________________________________________
January 9, 2003
Before KING, Chief Judge, and DEMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-appellant Raul Rendon-Rodriguez appeals his
conviction and sentence on one count of being found unlawfully
present in the United States after deportation subsequent to
conviction for an aggravated felony, in violation of
8 U.S.C. § 1326(a) and (b)(2). Rendon-Rodriguez argues that the
district court abused its discretion in denying his motion to
*
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this opinion should not be published and is not precedent except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.
withdraw his guilty plea because that court incorrectly concluded
that his challenge (under United States v. Mendoza-Lopez, 481
U.S. 828 (1987), and 8 U.S.C. § 1326(d)) of his prior removal
order was without merit. Since the district court’s decision,
this court has held in United States v. Lopez-Ortiz, 313 F.3d
225, 231 (5th Cir. 2002), that an immigration judge’s failure to
inform an alien at his removal hearing of his eligibility for
§ 212(c) relief does not rise to the level of fundamental
unfairness under the third prong of 8 U.S.C. § 1326(d). Rendon-
Rodriguez’s counsel correctly conceded at oral argument (while
preserving his right to seek further relief from the Supreme
Court) that Lopez-Ortiz forecloses relief for Rendon-Rodriguez
here.
Rendon-Rodriguez also argues that the district court abused
its discretion in declining to depart downward for cultural
assimilation. Rendon-Rodriguez points to language in the
district court’s comments at hearings held relating to Rendon-
Rodriguez’s sentence that he reads as categorically rejecting
cultural assimilation as a ground for departure. While it may be
fair to read the district court’s comments as reflecting concerns
with the entire concept of cultural assimilation as a ground for
departure, the district court clearly understood that it could
depart downward on that basis and it did the job it was required
to do in evaluating whether Rendon-Rodriguez’s situation was
sufficiently atypical to be outside the heartland of cases. The
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court concluded that it was not, and we lack jurisdiction to
review whether a downward departure was warranted by the facts of
the case.
Finally, Rendon-Rodriguez claims that 8 U.S.C. § 1326(b)(2)
is unconstitutional because the fact of an aggravated felony must
be alleged and proved to the factfinder beyond a reasonable
doubt. Rendon-Rodriguez recognizes that Almendarez-Torres v.
United States, 523 U.S. 224, 226-27 (1998), is binding on that
point, and he raises the issue to preserve it for further review.
That case is indeed binding, and we reject his argument.
The conviction and sentence of Rendon-Rodriguez are
AFFIRMED.
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