United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2004
Charles R. Fulbruge III
Clerk
No. 03-41731
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR BARRIOS-PEREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-850-1
--------------------
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Hector Barrios-Perez pleaded guilty to a one-count
indictment charging him with re-entering the United States
illegally after deportation. He was sentenced to a 57-month term
of imprisonment, to be followed by a three-year term of
supervised release.
Barrios contends that the district court misapprehended its
authority to depart downward on grounds of cultural assimilation.
The issue presented to and addressed by the district court was
*
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this opinion should not be published and is not precedent except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. 03-41731
-2-
whether Barrios qualified for a “fast track” departure. Rather
than misapprehending its legal authority to depart downward on
the basis of cultural assimilation, the district court determined
that it lacked legal authority to adopt a substitute basis for
departure as a means for remedying the Government’s failure to
implement a “fast track” program. Because the record does not
support Barrios’s argument that the district court misapprehended
its legal authority to depart downward on the basis of cultural
assimilation, this court lacks jurisdiction to review the issue.
See United States v. Rodriguez-Montelongo, 263 F.3d 429, 431 (5th
Cir. 2001). The appeal is dismissed in part.
Barrios’s offense level was raised by 16 levels pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii) because he was convicted for an
aggravated felony/crime of violence prior to deportation.
Barrios contends that the prior conviction constituted an element
of the offense under 8 U.S.C. § 1326(b) and should not be
regarded as a mere sentencing factor. Because the fact of the
prior conviction was not alleged in the indictment, he contends,
his maximum sentence should have been no more than 24 months
under 8 U.S.C. § 1326(a). He concedes that this argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998), but asserts that Almendarez-Torres has been called
into doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000).
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
No. 03-41731
-3-
(5th Cir. 2000). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). The district court’s judgment is affirmed in
part.
For the foregoing reasons, the judgment of the district
court is AFFIRMED IN PART; and the appeal is DISMISSED IN PART.