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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(1987), and

(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,

(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

(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

2 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

(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,

(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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