United States v. Perez-Vela , 273 F. App'x 405 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 15, 2008
No. 07-20262
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROSALIO PEREZ-VELA, also known as Victor Manuel Mendoza, also known as
Victor Mendoza, also known as Manuel Mendoza-Paz, also known as Rosalio A
Perez, also known as Victor Manuel Mendozapaz
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CR-361-ALL
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Rosalio Perez-Vela appeals his conviction and sentence for being found
unlawfully in the United States after deportation. Perez Vela argues that the
district court erred when it (1) departed upward pursuant to U.S.S.G. § 4A1.3
based on the inadequacy of Perez-Vela’s criminal history category and (2)
imposed a 16-level enhancement pursuant to U.S.S.G. § 2L1.2 (B)(1)(A)(ii) based
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20262
on Perez-Vela’s prior Texas conviction for burglary of a habitation. Perez-Vela
also argues that the sentence-enhancement provisions of 8 U.S.C. § 1326(b) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Perez-Vela’s 115-month sentence included an upward departure from
criminal history category VI pursuant to § 4A1.3. Thus, Perez-Vela’s sentence
is a guideline sentence, which is reviewed for an abuse of discretion. See United
States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The district court concluded
that an upward departure was warranted because Perez-Vela’s criminal history
score underrepresented the seriousness of his criminal history or the likelihood
that he would commit other crimes and further explained that the departure was
justified by Perez-Vela’s extensive criminal history, which included two felony
convictions and eight misdemeanor convictions. See United States v.
Zuniga-Peralta, 442 F.3d 345, 348 (5th Cir. 2006). Furthermore, the extent of
the district court's departure was not unreasonable given the nature of the
instant offense and Perez-Vela’s extensive criminal history. See Zuniga-Peralta,
442 F. 3d at 347-48; United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005).
Perez-Vela has not shown that the district court reversibly erred in imposing an
upward departure or that the extent of the departure was unreasonable.
Perez-Vela’s challenge to his 16-level crime of violence enhancement is also
unavailing. His Texas conviction for burglary of a habitation qualifies as an
enumerated offense for purposes of the enhancement. See United States v.
Garcia-Mendez, 420 F.3d 454, 456-57 (5th Cir. 2005). Notwithstanding his
argument to the contrary, James v. United States, 127 S. Ct. 1586 (2007), does
not overrule this court’s precedent on this issue. See United States v. Gomez-
Guerra, 485 F.3d 301, 303 & n.1 (5th Cir.), cert. denied, 128 S. Ct. 156 (2007).
In light of Apprendi, Perez-Vela challenges the constitutionality of
§ 1326(b)'s treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must be found by a
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No. 07-20262
jury. This argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th
Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
AFFIRMED.
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