United States v. Montelongo-Perret ( 2003 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________________
No. 02-20113
SUMMARY CALENDAR
_________________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ADOLFO MONTELONGO-PERRET
Defendant - Appellant
______________________________________________________________________________
On Appeal from the United States District Court for the
Southern District of Texas, Houston Division
(H-01-CR-386-ALL)
______________________________________________________________________________
March 14, 2003
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Adolfo Montelongo-Perret appeals his bench-trial conviction for illegal reentry following
deportation. He first argues that the district court erred by imposing a four-level increase in his
offense level because his state court convictions for unauthorized use of a motor vehicle and auto
theft did not constitute felonies under USSG § 2L1.2(b)(1)(D). Perret acknowledges that his
1
Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
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argument is foreclosed by United States v. Caicedo-Cuero, 312 F.3d 697, 704-06 (5th Cir. 2002),
but seeks to preserve the issue for Supreme Court review. Perret’s argument is indeed foreclosed.
Id.Perret avers next that the district court abused its discretion in departing upward based on
its finding that his criminal history category underrepresented the seriousness of his past criminal
conduct. The district court explained that the upward departure was based on Perret’s extensive
criminal history, the nature of Perret’s prior offenses, and his propensity for recidivism. The
district court provided acceptable reasons for the departure, and the departure was reasonable.
See United States v. McKenzie, 991 F.2d 203, 204 (5th Cir. 1993); United States v. Lambert, 984
F.2d 658, 662-63 (5th Cir. 1993)(en banc).
Perret contends that the district court should have suppressed the evidence of his prior
administrative deportation because he was deprived of due process during his 8 U.S.C. § 1228administrative deportation proceeding. Perret concedes that his argument is foreclosed by this
court’s precedent, but he raises the issue to preserve it for Supreme Court review.
In United States v. Benitez-Villafuerte, 186 F.3d 651, 656-60 (5th Cir. 1999), this court
held that the administrative deportation procedures set forth in 8 U.S.C. § 1228 comport with due
process and that evidence of such deportation proceedings is admissible in a subsequent criminal
prosecution under 8 U.S.C. § 1326. We are bound by this court’s precedent absent an intervening
Supreme Court decision or a subsequent en banc decision. See United States v. Short, 181 F.3d
620, 624 (5th Cir. 1999). No such decision overruling Benitez-Villafuerte exists.
Lastly, Perret contends that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), 8
U.S.C. § 1326(b)(2) is unconstitutional because it does not require the prior felony conviction to
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be proved as an element of the offense. Perez acknowledges that his argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to preserve the issue for
Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 446 (2000). Apprendi did not
overrule Almendarez-Torres. Apprendi, 530 U.S. at 489-90, 496; United States v. Dabeit, 231
F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the
Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation and
citation omitted). Given the foregoing, the judgement of the district court is AFFIRMED.
AFFIRMED.
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