Document Info

DocketNumber: 05-10285

Citation Numbers: 182 F. App'x 376

Judges: Higginbotham, Benavides, Dennis

Filed Date: 5/31/2006

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                   May 31, 2006
    Charles R. Fulbruge III
    No. 05-10285                          Clerk
    Summary Calendar
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    JUAN LUEVANO-OROZCO, also known as Juan Leuvano-Orozco,
    Defendant-Appellant.
    --------------------
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:04-CR-148-ALL-A
    --------------------
    Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
    PER CURIAM:*
    Juan Luevano-Orozco appeals the sentence imposed following
    his guilty-plea conviction for illegal reentry into the United
    States following deportation in violation of 
    8 U.S.C. § 1326
    (a)
    & (b).   He argues 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).
    Luevano-Orozco’s constitutional challenge is foreclosed by
    Almendarez-Torres v. United States, 
    523 U.S. 224
    , 235 (1998).
    Although Luevano-Orozco contends that Almendarez-Torres was
    *
    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    this opinion should not be published and is not precedent except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. 05-10285
    -2-
    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).   Luevano-Orozco properly concedes that this argument is
    foreclosed in light of Almendarez-Torres and circuit precedent,
    but he raises it here to preserve it for further review.
    Luevano-Orozco also argues that the district court erred in
    departing upward based on improper factors not permitted under
    U.S.S.G. § 4A1.3(a)(2).   A post-Booker discretionary sentence
    imposed within a properly calculated guidelines range is
    presumptively reasonable.    United States v. Alonzo, 
    435 F.3d 551
    ,
    553 (5th Cir. 2006).   If the district court imposed a sentence
    outside of the guideline range, it must give specific reasons so
    that we can ascertain the reasonableness of the sentence.       United
    States v. Hardin, 
    437 F.3d 470
    -71 (5th Cir. 2006).    The effect of
    Booker is “to return essentially to the abuse-of-discretion
    standard [for upward departures] employed prior to 2003.”       United
    States v. Simkanin, 
    420 F.3d 397
    , 416 (5th Cir. 2005), petition
    for cert. filed (Jan. 25, 2006) (No. 05-948).
    Luevano-Orzoco has not shown that the district court’s
    upward departure was an abuse of discretion or unreasonable.
    The district court properly considered factors that are
    permissible under § 4A1.3(a)(2), including Luevano-Orozco’s old
    No. 05-10285
    -3-
    convictions involving similar or serious dissimilar conduct, see
    § 4A1.2, comment. (n.8); his juvenile adjudications, see United
    States v. Hawkins, 
    87 F.3d 722
    , 730 (5th Cir. 1996); and lenient
    sentences for prior convictions.    See United States v. Lee,
    
    358 F.3d 315
    , 328-29 (5th Cir. 2004).      The district court did not
    base its decision to depart upward on his arrest record.     The
    district court did not err in considering California criminal
    record printouts of his prior convictions as these records
    established the offenses, and he does not argue on appeal that
    he was not previously convicted of these offenses.     Further,
    Luevano-Orozco had been deported seven times, and he returned to
    commit additional crimes upon each reentry.      The district court’s
    decision to depart based on his likelihood to recidivate was
    warranted and proper.    See United States v. McDowell, 
    109 F.3d 214
    , 218 (5th Cir. 1997).   Moreover, the 120-month sentence
    imposed by the district court was well below the 240-month
    statutory maximum sentence for the offense and was reasonable,
    given Luevano-Orozco’s lengthy criminal history, his seven
    previous deportations, the likelihood of recidivism, and the need
    to protect the public.    See United States v. Smith, 
    417 F.3d 483
    ,
    489-91 (5th Cir.), cert. denied, 
    126 S. Ct. 713
     (2005); see also
    United States v. Smith, 
    440 F.3d 704
    , 707-08 (5th Cir. 2006).
    The district court provided sufficient, valid reasons for its
    decision to depart upward and, therefore, the sentence was
    reasonable.   See Hardin, 437 F.3d at 470-71.
    AFFIRMED.