United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-10690
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GABRIEL RAMIREZ-GOMEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:03-CR-55-ALL-C
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Gabriel Ramirez-Gomez (“Ramirez”) pleaded guilty to illegal
re-entry following deportation in violation of 8 U.S.C. § 1326.
The district court sentenced Ramirez to 30 months’ imprisonment
and three years’ supervised release.
The Federal Public Defender has filed a brief on Ramirez’s
behalf, raising the issues 1) whether the district court erred in
denying Ramirez’s motion for a downward departure and 2) whether
a prior felony conviction is an element of the offense under
*
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this opinion should not be published and is not precedent except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. 04-10690
-2-
8 U.S.C. § 1326(b). The Federal Public Defender asserts that
only the first issue is presented pursuant to Anders v.
California, 386 U.S. 738 (1967); he argues the latter issue on
the merits and without reliance on Anders.
Anders established standards for a court-appointed attorney
who seeks to withdraw from a direct criminal appeal on the ground
that the appeal lacks an issue of arguable merit. See Anders,
386 U.S. at 744. Because counsel does not seek to withdraw and
because counsel does not suggest that this appeal is “wholly
frivolous,” Anders is inapposite, and we therefore address the
merits of the appeal.
As Ramirez concedes, the record does not reflect that the
district court misunderstood the scope of its authority to depart
downward. See United States v. Cothran, 302 F.3d 279, 291 (5th
Cir. 2002). Thus, this court does not have jurisdiction to
review the district court’s decision to deny the motion for a
downward departure. See United States v. Buck, 324 F.3d 786, 798
(5th Cir. 2003). The appeal is dismissed in part.
Ramirez argues that the prior conviction resulting in his
increased sentence under 8 U.S.C. § 1326(b) was an element of the
offense that had to be alleged in the indictment. Ramirez
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224, 235 (1998), but he seeks to
preserve the issue for Supreme Court review in the light of the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
No. 04-10690
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(2000). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Mancia-Perez, 331
F.3d 464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).
Accordingly, the judgment of the district court is affirmed. The
Government’s motion for dismissal or summary affirmance is
granted.
The judgment of the district court is AFFIRMED IN PART, and
the appeal is DISMISSED IN PART. MOTION GRANTED.