United States v. Perez-Martinez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 4, 2003
Charles R. Fulbruge III
Clerk
No. 02-21185
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTURO PEREZ-MARTINEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-242-1
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Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Arturo Perez-Martinez (Perez) appeals the 105-month sentence
imposed following his plea of guilty to a charge of having been
present in the United States after deportation, a violation of
8 U.S.C. § 1326. We AFFIRM.
Perez contends that the district court reversibly erred in
sentencing him under the guidelines, by departing upward one
offense level pursuant to U.S.S.G. § 4A1.3. There was no abuse
*
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that this opinion should not be published and is not precedent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. 02-21185
-2-
of the district court’s wide discretion, however, because the
court gave acceptable reasons for departing and the extent of the
departure is reasonable. See United States v. Route, 104 F.3d
59, 64 (5th Cir. 1997). Furthermore, it is clear that Perez’s
sentence would have been no different if the district court had
disregarded his minor stale convictions. See Williams v. United
States, 503 U.S. 193, 204 (1992).
Perez also contends that the 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 and proved to a jury beyond a reasonable doubt. He
acknowledges that his 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). Perez’s contention lacks merit because Apprendi
did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at
489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000).
AFFIRMED.