                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 00-40848
                          Conference Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

CHARLES RAY WELCH, JR.,

                                           Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Eastern District of Texas
                        USDC No. 1:99-CR-110-1
                         --------------------
                            August 23, 2001

Before KING, Chief Judge, and POLITZ and PARKER, Circuit Judges.

PER CURIAM:*

     Charles Ray Welch argues that the district court erred at

sentencing in determining that it did not have the authority to

depart downward below the minimum statutory penalty pursuant to

U.S.S.G. § 5K2.0, p.s., and § 5K2.11, p.s.

     “A refusal to grant a downward departure is a violation of

law only if the court mistakenly assumes that it lacks authority

to depart.”    See United States v. Yanez-Huerta, 207 F.3d 746, 748

(5th Cir.), cert. denied, 121 S. Ct. 432 (2000) (citation

omitted).   A district court is authorized to depart below the

     *
        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that this opinion should not be published and is not precedent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. 00-40848
                                  -2-

minimum statutory penalty only if the Government files a motion

for downward departure that reflects the defendant’s substantial

assistance.   See United States v. Cerverizzo, 74 F.3d 629, 633

(5th Cir. 1996); United States v. Alvarez, 51 F.3d 36, 39 (5th

Cir. 1995).

     Because the Government did not file a motion for downward

departure showing that Welch had provided it with substantial

assistance, the district court correctly determined that it did

not have the authority to depart below the minimum statutory

penalty.

     As Welch concedes, his argument that his sentence was

improperly enhanced under 18 U.S.C. § 924(e) because the jury did

not determine that he had three prior felony convictions is

foreclosed by the holding in Almendarez-Torres v. United States,

523 U.S. 224, 235 (1998), that a sentencing enhancement factor is

not an element of the offense that must be proved beyond a

reasonable doubt at trial.

     AFFIRMED.
