United States v. Marquez-Conde ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 25, 2007
Charles R. Fulbruge III
Clerk
No. 06-10921
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AMALIO MARQUEZ-CONDE,
also known as Jose Marquez Conde,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:06-CR-129-ALL
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Amalio Marquez-Conde (Marquez) appeals the 86-month sentence
imposed following his guilty plea conviction for illegal reentry,
in violation of 8 U.S.C. § 1326. He advances several arguments
challenging the district court’s refusal to find that his three
prior Texas convictions for delivery of cocaine were related for
purposes of computing his criminal history score under U.S.S.G.
§ 4A1.2(a)(2).
*
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this opinion should not be published and is not precedent except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. 06-10921
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First, Marquez argues that the charges were informally
consolidated under state law which rendered them related for
purposes of the Federal Sentencing Guidelines because he pleaded
guilty to the charges and was sentenced for all of them in the
same proceeding. He contends that the district court’s comments
at sentencing “strongly suggest” that it concluded, incorrectly,
that a formal consolidation order is required in all cases before
prior convictions can qualify as related under the Guidelines.
Although the argument is framed as a challenge to the legal
standards applied by the district court, the district court’s
comments, taken in context, evidence a factual determination that
the cases were not consolidated in state court, which finding is
reviewed for clear error. See Buford v. United States, 532 U.S.
59, 64-66 (2001).
The FPD is correct that a formal consolidation order is not
a prerequisite to a consolidation finding in all cases. See
United States v. Huskey, 137 F.3d 283, 288 (5th Cir. 1998).
However, although formal consolidation is not required by the
Guidelines, this court has consistently recognized that there is
no informal consolidation under Texas law. See United States v.
Velazquez-Overa, 100 F.3d 418, 423-34 (5th Cir. 1996); United
States v. Garcia, 962 F.2d 479, 482-83 (5th Cir. 1992), abrogated
on other grounds by Buford, 532 U.S. at 63. Because there was no
motion for or formal consolidation order in the Texas court, the
district court correctly concluded that Marquez’s single arrest,
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consecutive case numbers, and identical concurrent sentences
imposed on the same date were insufficient to show consolidation.
See Huskey, 137 F.3d 283, 288; Garcia, 962 F.2d 479, 482-83; see
also United States v. Kates, 174 F.3d 580, 584 (5th Cir. 1999).
The district court similarly did not err in determining that
Marquez’s prior convictions were not part of a common scheme or
plan rather than mere repeated drug trafficking offenses
committed over the course of several days. See United States v.
Robinson, 187 F.3d 516, 520 (5th Cir. 1999). There is no
evidence in the record to suggest that the transactions were
linked by any common purpose or that the later offenses were
borne out of the earlier ones. See id. That the prior offenses
were factually, temporally, and geographically alike is
insufficient. See Garcia, 962 F.2d at 481-82; see also United
States v. Ford, 996 F.2d 83, 86 (5th Cir. 1993). The district
court additionally did not err, plainly or otherwise, in finding
that the prior transactions were not committed on the same
occasion. See United States v. Moreno-Arredondo, 255 F.3d 198,
203-04 (5th Cir. 2001); see also United States v. Gracia-Cantu,
302 F.3d 308, 310 (5th Cir. 2002).
Marquez’s constitutional challenge to § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,
235 (1998). Although Marquez contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi v. New
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Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such
arguments on the basis that Almendarez-Torres remains binding.
See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.
2005). Marquez properly concedes that his argument is foreclosed
in light of Almendarez-Torres and circuit precedent, but he
raises it here to preserve it for further review.
The district court’s judgment is AFFIRMED.