United States v. Reyes-Anchondo

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 29, 2003
• Docket: 02-50898
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D April 28, 2003 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-50898 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAIME REYES-ANCHONDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-02-CR-219-ALL-DB --------------------

Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:1

Jamie Reyes-Anchondo (Reyes) appeals his guilty-plea

conviction and sentence for illegal reentry following deportation

in violation of 8 U.S.C. § 1326(a) and (b). He contends that the

district court erred by going beyond the statute of conviction and

the indictment of his previous alien-smuggling offense to determine

that a 16-level increase in his offense level was warranted under

U.S.S.G. § 2L1.2(b)(1)(A)(vii) for alien-smuggling “for profit.”

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50898 -2-

He also contends that his present indictment was defective for

failing to allege that the prior offense was for profit.

When determining whether an offense-level increase under

U.S.S.G. § 2L1.2 is warranted, the district court is not limited to

the conduct charged in the indictment of the prior offense, but may

go beyond the statute of conviction and charging instrument to

determine whether the increase is warranted. United States v.

Sanchez-Garcia, __ F.3d __ , No. 02-40827 (5th Cir. Jan. 24, 2003),

2003 WL 164156, *1. The court did not err by looking beyond the

statute and indictment of Reyes’s prior conviction to consider a

penalty-notice enhancement and Presentence Report (PSR) from the

prior case, both of which indicated that the prior offense was

committed for profit. The district court did not misapply the

guidelines.

Reyes failed to offer any rebuttal evidence to show that “the

PSR’s information is materially untrue, inaccurate or unreliable.”

See United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001).

Absent any such rebuttal evidence, the district court could

properly rely on the PSR to establish the sentencing range. See

id.; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995);

United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). The

district court did not err by finding that the prior offense was

committed for profit.

Reyes’s claim that the for-profit factor was required to be

alleged in the indictment is foreclosed by Apprendi v. New Jersey, No. 02-50898 -3-

530 U.S. 466 (2000) and Almendarez-Torres v. United States, 523

U.S. 224 (1998). Because the prior conviction itself need not have

been alleged in the indictment, neither did the for-profit factor,

which merely affected the sentence within the statutory range

already warranted by the prior conviction. See 8 U.S.C. § 1326(b);

U.S.S.G. § 2L1.2(b)(1); United States v. Keith, 230 F.3d 784,

786-87 (5th Cir. 2000) (Apprendi affords no relief when sentence

enhanced within statutory range).

The district court’s judgment is AFFIRMED.