United States v. Martinez-Melchor , 161 F. App'x 401 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2006
Charles R. Fulbruge III
Clerk
No. 04-50301
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JORGE LUIS MARTINEZ-MELCHOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-03-CR-298-ALL-SS
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Before SMITH, GARZA and PRADO, Circuit Judges
PER CURIAM:*
Jorge Luis Martinez-Melchor appeals his sentence upon his
guilty-plea conviction for illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Martinez contends
that the district court’s upward departure pursuant to U.S.S.G.
§ 4A1.3 was erroneous because his prior offenses were all used to
determine his Criminal History Category, the risk of recidivism
was not unusually high, and the district court failed to explain
adequately the reasons for departure.
*
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this opinion should not be published and is not precedent except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. 04-50301
-2-
Martinez had an offense level of 13, a criminal history
category of VI, and a guideline range of 33 to 41 months. The
district court departed upward to an offense level of 17 and
imposed a sentence of 63 months. The court explained that it was
moving up four levels because of Martinez’s long criminal
history, because Martinez had been deported on three prior
occasions, and because of the likelihood that he would
recidivate. Guided by the factors in 18 U.S.C. § 3553(a), we
conclude that there is no reversible error and that the district
court’s sentence was reasonable for the reasons stated by the
district court. See United States v. Simkanin, 420 F.3d 397,
414-19 (5th Cir. 2005); United States v. Smith, 417 F.3d 483,
489-93 (5th Cir.), cert. denied, U.S. , 2005 WL 3027879(Nov. 14, 2005) (No. 05-7063).
Martinez also contends that he is entitled to be resentenced
because the district court sentenced him under a mandatory
application of the United States Sentencing Guidelines, which is
prohibited by United States v. Booker, 125 S. Ct. 738 (2005).
The parties agree that plain error is the proper standard of
review in this case. Martinez does not attempt, however, to make
the showing of plain error that is required by our precedent in
United States v. Mares, 402 F.3d 511, 520 n.9 (5th Cir.), cert.
denied, 126 S. Ct. 43 (2005). Moreover, this court has rejected
his arguments that a Booker error is a structural error and that
such errors are presumed to be prejudicial. See Mares, 402 F.3d
No. 04-50301
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at 520-22; see also United States v. Malveaux, 411 F.3d 558, 560
n.9 (5th Cir.), cert. denied, 126 S. Ct. 194 (2005).
Martinez also asserts that the felony and aggravated-felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
Martinez’s constitutional challenge is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). Although he
contends that Almendarez-Torres was incorrectly decided and that
a majority of the Supreme Court would overrule Almendarez-Torres
in light of Apprendi, 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.), cert.
denied, 126 S. Ct. 298 (2005). Martinez 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.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.