United States v. Hernandez-Fausto

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-99-CR-412-1
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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,

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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.

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