                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  October 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10690
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

GABRIEL RAMIREZ-GOMEZ,


                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 6:03-CR-55-ALL-C
                      --------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

     Gabriel Ramirez-Gomez (“Ramirez”) pleaded guilty to illegal

re-entry following deportation in violation of 8 U.S.C. § 1326.

The district court sentenced Ramirez to 30 months’ imprisonment

and three years’ supervised release.

     The Federal Public Defender has filed a brief on Ramirez’s

behalf, raising the issues 1) whether the district court erred in

denying Ramirez’s motion for a downward departure and 2) whether

a prior felony conviction is an element of the offense under

     *
       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this opinion should not be published and is not precedent except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. 04-10690
                                  -2-

8 U.S.C. § 1326(b).   The Federal Public Defender asserts that

only the first issue is presented pursuant to Anders v.

California, 386 U.S. 738 (1967); he argues the latter issue on

the merits and without reliance on Anders.

     Anders established standards for a court-appointed attorney

who seeks to withdraw from a direct criminal appeal on the ground

that the appeal lacks an issue of arguable merit.     See Anders,

386 U.S. at 744.   Because counsel does not seek to withdraw and

because counsel does not suggest that this appeal is “wholly

frivolous,” Anders is inapposite, and we therefore address the

merits of the appeal.

     As Ramirez concedes, the record does not reflect that the

district court misunderstood the scope of its authority to depart

downward.   See United States v. Cothran, 302 F.3d 279, 291 (5th

Cir. 2002).   Thus, this court does not have jurisdiction to

review the district court’s decision to deny the motion for a

downward departure.     See United States v. Buck, 324 F.3d 786, 798

(5th Cir. 2003).   The appeal is dismissed in part.

     Ramirez argues that the prior conviction resulting in his

increased sentence under 8 U.S.C. § 1326(b) was an element of the

offense that had to be alleged in the indictment.     Ramirez

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224, 235 (1998), but he seeks to

preserve the issue for Supreme Court review in the light of the

Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
                            No. 04-10690
                                 -3-

(2000).    Apprendi did not overrule Almendarez-Torres.   See

Apprendi, 530 U.S. at 489-90; United States v. Mancia-Perez, 331

F.3d 464, 470 (5th Cir.), cert. denied, 124 S. Ct. 358 (2003).

Accordingly, the judgment of the district court is affirmed.    The

Government’s motion for dismissal or summary affirmance is

granted.

     The judgment of the district court is AFFIRMED IN PART, and

the appeal is DISMISSED IN PART.   MOTION GRANTED.
