United States v. Perez-Martinez

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 4, 2003

Charles R. Fulbruge III Clerk No. 02-21185 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARTURO PEREZ-MARTINEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-02-CR-242-1 --------------------

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Arturo Perez-Martinez (Perez) appeals the 105-month sentence

imposed following 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.

Perez contends that the district court reversibly erred in

sentencing him under the guidelines, by departing upward one

offense level pursuant to U.S.S.G. § 4A1.3. There was no abuse

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-21185 -2-

of the district court’s wide discretion, however, because the

court gave acceptable reasons for departing and the extent of the

departure is reasonable. See United States v. Route, 104 F.3d

59, 64 (5th Cir. 1997). Furthermore, it is clear that Perez’s

sentence would have been no different if the district court had

disregarded his minor stale convictions. See Williams v. United

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

Perez 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

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). Perez’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.