United States v. Velasquez-Moreno ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-10838
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-
Appellee,
versus
PEDRO VELASQUEZ-MORENO, also known as Rogelio Robles
Vasquez, also known as Pedro Velasquez Moreno, also
known as Padro Valisquas, also known as Eleno Escobedo
Miranda,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:05-CR-14-ALL
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Before BARKSDALE, STEWART and CLEMENT, Circuit Judge.
PER CURIAM:*
Pedro Velasquez-Moreno appeals the sentence imposed following his guilty-plea conviction
for illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326(a) and
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
(b)(2). He argues that the district court’s upward departure was erroneous because he had the
minimum number of criminal history points for Criminal History Category VI and he had not
committed an offense since 1995. He also argues that the district court’s upward departure was
excessive, that the district court did not move incrementally down the sentencing table, and that the
district court did not adequately explain how it arrived at the sentence.
Velasquez-Moreno had an offense level of 21, a criminal history category of VI, and a
Guidelines range of 77 to 96 months. The district court departed upward to an offense level of 27
and imposed a sentence of 156 months. The district court explained that its upward departure was
based on Velasquez-Moreno’s extensive criminal history, his very high likelihood of recidivism, the
need to promote respect for the law, the need to deter future criminal conduct, and the need to
protect the public from further crimes by Velasquez-Moreno. 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,
416 (5th Cir. 2005), petition for cert. filed (Jan. 25, 2006)(No. 05-948); United States v. Smith, 417
F.3d 483, 489-90 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005).
Velasquez-Moreno also argues that his sentence should be vacated because Apprendi v. New
Jersey, 530 U.S. 466 (2000), implicitly overruled Almendarez-Torres v. United States, 523 U.S. 224
(1998). He concedes that his argument is foreclosed by Almendarez-Torres. We must follow the
precedent in Almendarez-Torres “unless and until the Supreme Court itself determines to overrule
it.” United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
AFFIRMED.
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