                      IN THE UNITED STATES COURT OF APPEALS

                                    FOR THE FIFTH CIRCUIT




                                             No. 00-40154
                                           Summary Calendar




UNITED STATES OF AMERICA,

                                                                                           Plaintiff-Appellee,

                                                  versus

LUIS ANGEL HERNANDEZ-FAUSTO,

                                                                                         Defendant-
Appellant.



                       --------------------------------------------------------------
                            Appeal from the United States District Court
                                   for the Southern District of Texas
                                      USDC No. B-99-CR-412-1
                       ---------------------------------------------------------------
                                            October 19, 2000


Before EMILIO M. GARZA, STEWART, and PARKER Circuit Judges:

PER CURIAM:*

       Luis Angel Hernandez-Fausto appeals following his guilty-plea conviction and sentencing for

his offense of illegal reentry into the country. See 8 U.S.C. § 1326. He contends that his criminal

history category over-represented the seriousness of his criminal history, that the district court would

have departed downwardly had the court not mistakenly believed that it lacked authority to do so,




       *
          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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
and that the indictment was insufficient because it failed to allege his prior felony conviction, which

was used to enhance his sentence.

       Given Hernandez-Fausto’s three prior felonies and the pattern of those offenses, he was not

entitled to a downward departure. See U.S.S.G. §§ 2K1.2, comment. (n.5) and 4A1.3. Furthermore,

Hernandez-Fausto’s case is governed by Almendarez-Torres v. United States, 523 U.S. 224, 234-35

(1998), which was not overruled by Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000). The

indictment in his case was sufficient.

       AFFIRMED.
