United States v. Pena-Ordonez

78 F. App'x 416

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 19, 2003

Charles R. Fulbruge III Clerk No. 02-21243 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CONRADO PENA-ORDONEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-150-ALL --------------------

Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.

PER CURIAM:*

Conrado Pena-Ordonez (Pena) appeals his conviction and the 60-

month prison sentence he received upon his plea of guilty to

a charge of having been present in the United States after

deportation, a violation of 8 U.S.C. § 1326. We AFFIRM.

Pena contends that the district court reversibly erred

in sentencing him under the guidelines, by departing upward in

determining his term of imprisonment. The district court did not

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-21243 -2-

reversibly err, however, because the court gave acceptable reasons

for departing and the extent of the departure is reasonable.

United States v. Hefferon, 314 F.3d 211, 227 (5th Cir. 2002).

Furthermore, it is clear that Pena’s sentence

would have been no different if the district court had disregarded

the fact that he had lied to law enforcement authorities in

connection with his prior offenses. See Williams v. United States,

503 U.S. 193, 204 (1992).

Pena also contends that the felony conviction that resulted in

his increased sentence under 8 U.S.C. § 1326(b)(2) was an element

of the offense that should have been charged in the indictment and

proved to a jury beyond a reasonable doubt. He asserts that 8

U.S.C. § 1326(a)(1) and (2) are unconstitutional on their face and

as applied in his case. He acknowledges that his argument is

foreclosed by the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review in light of the decision in Apprendi

v. New Jersey, 530 U.S. 466 (2000). Pena’s contention lacks merit

because Apprendi did not overrule Almendarez-Torres. See Apprendi,

530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th

Cir. 2000).

AFFIRMED.