IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40716
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PABLO EMILIO RAYO,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:99-CR-167-ALL
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February 14, 2001
Before SMITH, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Pablo Emilio Rayo (Rayo) appeals his guilty-plea conviction
for possession with intent to distribute cocaine base. He argues
the district court erred in sentencing him as a career offender
because his two prior felony convictions for possession of
narcotics with intent to sell were related for purposes of
U.S.S.G. § 4A1.2(a)(2). He also argues that his conviction is
unconstitutional under Apprendi v. New Jersey, 120 S. Ct. 2348
(2000), because his indictment did not allege the drug quantity
used for sentencing.
This court reviews de novo the district court’s finding that
Rayo's prior convictions were not related. United States v.
*
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this opinion should not be published and is not precedent except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. 00-40716
-2-
Robinson, 187 F.3d 516, 519 (5th Cir. 1999). "Prior sentences
are not considered related if they were for offenses that were
separated by an intervening arrest (i.e., the defendant is
arrested for the first offense prior to committing the second
offense)." U.S.S.G. § 4A1.2, comment. (n.3).
Rayo committed the offense of possession of narcotics with
intent to sell on January 27, 1988, and was arrested on that same
date. His second offense of possession of narcotics with intent
to sell and the resulting arrest occurred on September 29, 1988.
Accordingly, the commission of the first and second offenses was
separated by an intervening arrest (the arrest on January 27,
1988), and the offenses, according to the U.S.S.G.'s official
commentary, are unrelated. We further note that the factors
cited by Rayo to support his relatedness argument have been
specifically rejected by this court. See Robinson, 187 F.3d at
519-20; United States v. Fitzhugh, 984 F.2d 143, 146-47 (5th Cir.
1993).
Rayo failed to raise the Apprendi v. New Jersey, 120 S. Ct.
2348 (2000), issue in the district court. Consequently, review
is limited to plain error. See United States v. Meshack, 225
F.3d 556, 575 (5th Cir. 2000). As conceded by Rayo in his
appellate brief, his sentence, determined by the applicable
guidelines, is within the statutory maximum, 20 years, and
therefore, Apprendi is inapplicable. See United States v. Keith,
230 F.3d 787 (5th Cir. 2000).
AFFIRMED.