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 2002-01

United States v. Peregrino-Lujan ( 2002 )


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  •                    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50604
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO PEREGRINO-LUJAN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-141-ALL-H
--------------------
January 8, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges:
PER CURIAM:*
Antonio    Peregrino-Lujan   appeals   his   120   month   sentence
following his plea of guilty to a charge of being found in the
United States after deportation, a violation of
    8 U.S.C. § 1326
    .
Peregrino contends that the district court erred in applying a two-
level increase to his base offense level for obstruction of justice
pursuant to U.S.S.G. § 3C1.1 and in denying him a reduction in his
*
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this opinion should not be published and is not precedent except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.
1
base offense level for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1.      He also contends that the aggravated-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.
The increase for obstruction of justice stemmed from false
information that was provided in support of a motion for downward
departure following preparation of the presentence report.               The
district    court’s   finding   that       Peregrino   willfully   obstructed
justice in connection with the motion is plausible in light of the
record as a whole and is not clearly erroneous.            United States v.
Powers,
    168 F.3d 741
    , 752 (5th Cir.), cert. denied,
    528 U.S. 945
    (1999).     Further, Peregrino fails to demonstrate extraordinary
circumstances warranting credit for acceptance of responsibility in
light of the district court’s finding of obstruction of justice.
United States v. Lujan-Sauceda,
    187 F.3d 451
    , 451-52 (5th Cir.
1999); § 3E1.1, comment. (n.4).
Peregrino acknowledges that his second 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). Apprendi did not overrule Almendarez-
Torres.    See Apprendi,
    120 S.Ct. at 2362
    ; United States v. Dabeit,
    231 F.3d 979
    , 984 (5th Cir. 2000), cert. denied,
    121 S.Ct. 1214
    2
(2001); United States v. Doggett,
    230 F.3d 160
    , 166 (5th Cir.
2000), cert. denied,
    121 S.Ct. 1152
     (2001).   Peregrino’s argument
is foreclosed.
The judgment of the district court is AFFIRMED.
3