                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   October 22, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 03-10367
                        Conference Calendar


UNITED STATES OF AMERICA,

                                      Plaintiff-Appellee,

versus

JOSE DANIEL CORDOVA-MUNOZ,

                                      Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                 for the Northern District of Texas
                      USDC No. 3:02-CR-347-ALL
                         --------------------

Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Attorney Robert J. Herrington, appointed to represent

Jose Daniel Cordova-Munoz (“Cordova-Munoz”), has requested

leave to withdraw and has filed a brief as required by Anders

v. California, 386 U.S. 738 (1967).    Cordova-Munoz has filed a

response.   He contends that the district court was unaware that

it had the authority to grant a downward departure and that the

sentencing enhancements in 8 U.S.C. § 1326 (b)(1)&(b)(2) are




     *
        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that this opinion should not be published and is not precedent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. 03-10367
                                 -2-

unconstitutional based on the holding in Apprendi v. New Jersey,

530 U.S. 466 (2000).

     Cordova-Munoz knowingly and voluntarily waived his right

to appeal his sentence except if his punishment exceeded the

statutory maximum, if the district court upwardly departed from

the applicable sentencing guidelines range, or if there were

any mathematical errors in his sentencing.    United States v.

Portillo, 18 F.3d 290, 292 (5th Cir. 1994).   Cordova-Munoz thus

waived the right to raise the argument regarding the district

court’s failure to grant a downward departure, and his argument

regarding the constitutionality of § 1326(b)(1)&(b)(2) is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

(1998).

     Our independent review of the brief, the record, and

Cordova-Munoz’s response discloses no nonfrivolous issue for

appeal.   Counsel’s motion for leave to withdraw is GRANTED,

counsel is excused from further responsibilities, and the appeal

is DISMISSED.   See 5TH CIR. R. 42.2.

     MOTION GRANTED; APPEAL DISMISSED.
