
    UNITED STATES of America, Plaintiff—Appellee, v. Francisco LOPEZ-HERNANDEZ, aka Daniel Estrada-Lopez, aka Beto Gonzalez-Lopez, aka John Doe, Defendant—Appellant.
    No. 00-50500. D.C. No. CR-99-01128-ABC-1.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 11, 2002.
    
    Decided Feb. 20, 2002.
    Before B. FLETCHER, T.G. NELSON and TALLMAN, Circuit Judges.
    
      
      This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Francisco Lopez-Hernandez appeals his conviction by guilty plea and sentence for one count of illegal re-entry in violation of 8 U.S.C. § 1326. Lopez-Hernandez’s attorney has filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), identifying two potential issues for review. Lopez-Hernandez has not filed a pro se supplemental brief.

Counsel first identifies the issue of whether the district court abused its discretion by denying Lopez-Hernandez’ request for a downward departure. Counsel correctly concludes that because the district court made a discretionary decision not to depart, this court lacks jurisdiction to consider the issue on appeal. United States v. Lipman, 133 F.3d 726, 729 (9th Cir.1998).

Counsel also identifies the issue of whether the district court violated Apprendi v. New jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by imposing a sentence enhancement for a prior aggravated felony. Counsel correctly concludes that this argument has been foreclosed by our decision in United States v. PachecoZepeda, 234 F.3d 411, 414 (9th Cir.2000), cert. denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001)(concluding that the fact of a prior conviction, whether or not admitted, is an exception to Apprendi).

Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 83, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no further issues for review. Accordingly, we GRANT counsel’s motion to withdraw and AFFIRM the judgment of the district court. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     