210 F. App'x 441
5th Cir.
2006

UNITED STATES of America, Plaintiff-Appellee, v. Martin GONZALEZ-GARIBAY, also known as Martin Gonzalez, Defendant-Appellant.

No. 06-40291

United States Court of Appeals, Fifth Circuit.

Dec. 20, 2006.

211 Fed. Appx. 441

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Martin Gonzalez-Garibay (Gonzalez) appeals his 84-month sentence for illegal reentry into the United States following deportation, in violation of 8 U.S.C. § 1326. He argues that his sentence was unreasonable because the district court failed to weigh properly the sentencing factors set forth in 18 U.S.C. § 3553(a) and imposed a term of imprisonment greater than necessary to satisfy the sentencing goals set forth in § 3553(a).

Gonzalez‘s sentence was within a properly calculated advisory guideline range and is presumed reasonable. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). Giving “great deference” to such a sentence, and recognizing that the sentencing court considered all the factors for a fair sentence under § 3553(a), we conclude that Gonzalez has failed to rebut the presumption that his sentence was reasonable. See id.

Gonzalez argues, in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that the 84-month term of imprisonment imposed in his case exceeds the statutory maximum sentence allowed for the § 1326(a) offense charged in his indictment. He challenges the constitutionality of § 1326(b)‘s treatment of prior felony and aggravated felony convictions as sentencing factors rather than as elements of the offense that must be found by a jury.

Gonzalez‘s constitutional challenge is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Although he contends that Almendarez-Torres was 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. 2005), cert. denied, --- U.S. ----, 126 S.Ct. 298, 163 L.Ed.2d 260 (2005). Gonzalez properly concedes that his argument is foreclosed in light of Almendarez-Torres and circuit precedent, but he raises it here to preserve it for further review.

AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Candido ARREOLA-ALBARRAN, also known as Igeniero, also known as Engineer, also known as El Tigre, also known as Cesar Torres-Avila, also known as El Tio, Defendant-Appellant.

No. 06-40164

United States Court of Appeals, Fifth Circuit.

Dec. 20, 2006.

211 Fed. Appx. 441

Summary Calendar.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Arnulfo Paul Guerra, Jr., Roma, TX, Marcia Gail Shein, Law Office of Marcia G. Shein, Decatur, GA, for Defendant-Appellant.

Before JONES, Chief Judge, and HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:*

Candido Arreola-Albarran (Arreola) pleaded guilty to conspiracy to possess with intent to distribute more than 1000 kilos of marijuana and more than five kilos of cocaine and conspiracy to commit money laundering as part of an extensive narcotics conspiracy.

He first argues that the district court should have capped his offense level, before making any downward adjustments, at 43. As Arreola raises this issue for the first time on appeal, we review for plain error. See United States v. Brown, 437 F.3d 450, 451 (5th Cir.), cert. denied, --- U.S. ----, 126 S.Ct. 2310, 164 L.Ed.2d 830 (2006). We previously rejected a similar argument in an unpublished but precedential decision. See United States v. Wood, No. 94-10217, slip op. at 15, 1995 WL 84100 (5th Cir. Feb. 8, 1995) (quoting United States v. Caceda, 990 F.2d 707, 710 (2d Cir. 1993)). Accordingly, Arreola has not shown plain error.

Arreola also challenges the two points the district court assessed for possession of firearms under U.S.S.G. § 2D1.1(b)(1). We review the district court‘s application of the Sentencing Guidelines de novo and reviews factual findings for clear error. United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). The district court may adopt facts stated in the presentence report (PSR) if they have an adequate basis and the defendant does not rebut them. Id.

The facts contained in the PSR repeatedly reveal firearms in the organization‘s stash houses with drug paraphernalia. Moreover, when officers arrested Arreola in North Carolina, they observed a firearm within easy reach of him in a trailer that also contained narcotics. Arreola has failed to rebut the evidence of the use of firearms in the conspiracy. The record as a whole demonstrates that the district court did not clearly err in finding that Arreola possessed a dangerous weapon in connection with the conspiracy.

Arreola also argues that the district court clearly erred in assessing a U.S.S.G. § 3B1.1(a) four-level adjustment for his leadership role in the offense. Again, Arreola has failed to rebut the considerable evidence in the record that he indeed exercised such a leadership role by directing other individuals in the organization, funding the activities of the organization, and recruiting new members. There is no clear error in the district court assessment of four points for Arreola‘s role in the offense.

Lastly, Arreola argues that the district court erred in failing to depart downward in recognition of Arreola‘s assistance to the Government. The district court‘s refusal to depart pursuant to U.S.S.G. § 5K1.1 is not reviewable unless the district court mistakenly believed that it had no discretion to so depart. United States v. Burleson, 22 F.3d 93, 94-95 (5th Cir. 1994). There is no evidence in the record that the district court misunderstood its authority under § 5K1.1. A district court has no authority to depart on the basis of substantial assistance under § 5K1.1 absent a Government motion. United States v. Solis, 169 F.3d 224, 226 (5th Cir. 1999). Thus, the district court‘s decision is not reviewable. Id.; Burleson, 22 F.3d at 94-95.

To the extent that Arreola is contending that the district court‘s decision to impose a sentence within the Guidelines range is unreasonable, he has failed to rebut the presumption of reasonableness. See United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

For these reasons, Arreola‘s sentence is AFFIRMED.

UNITED STATES of America, Plaintiff-Appellee, v. Willie Charles RUDD, Defendant-Appellant.

No. 06-10183

United States Court of Appeals, Fifth Circuit.

Dec. 20, 2006.

211 Fed. Appx. 444

Summary Calendar.

Susan B. Cowger, Amy Jennifer Bray, U.S. Attorney‘s Office, Dallas, TX, for Plaintiff-Appellee.

Charles Kenneth Bloeser, Hubbard, Berry, Doughty, Harris & Barrick, Nashville, TX, for Defendant-Appellant.

Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Willie Charles Rudd pleaded guilty to one count of being a felon in possession of

Notes

*
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. 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. 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.