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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-79-1 -------------------- 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,

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(5th Cir. 2000). Blandon’s appeal of the downward departure

issue is dismissed for lack of jurisdiction. See United States

v. Landerman,

(5th Cir. 1999).

As Blandon concedes, his challenge to the indictment is

foreclosed by Almendarez-Torres v. United States,

(1998), which was not overruled by Apprendi,

. See United States v. Doggett,

(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.