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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(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

(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

(a). He concedes that this argument is

foreclosed by Almendarez-Torres v. United States,

(1998), but asserts that Almendarez-Torres has been called

into doubt by Apprendi v. New Jersey,

(2000).

Apprendi did not overrule Almendarez-Torres. See Apprendi,

; United States v. Dabeit,

, 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,

(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.