IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50267
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE ALEX ROBERTSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-99-CR-80-ALL
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November 7, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Joe Alex Robertson appeals his sentence following his
guilty-plea conviction for bank robbery in violation of 18 U.S.C.
2113(a).
Robertson first argues that the application of the career
offender enhancement provision found at U.S.S.G. § 4B1.1
unconstitutionally increased his sentence in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the facts
supporting the enhancement provision were not proven to a jury
beyond a reasonable doubt. Bank robbery in violation of 18
*
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that this opinion should not be published and is not precedent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. 00-50267
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U.S.C. § 2113(a) is punishable by up to 20 years (240 months) in
prison. As such, bank robbery is a Class C felony, 18 U.S.C.
§ 3559(b), subjecting a defendant to a maximum of three years’
supervised release. Robertson was sentenced to 178 months’
imprisonment and three years’ supervised release. Because
Robertson did not receive a sentence above the statutory maximum
on the bank robbery conviction, Apprendi is inapplicable. United
States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied,
121 S. Ct 1163 (2001).
Robertson next argues that the district court erred in
applying the career offender enhancement provision because he did
not have the requisite prior convictions to support the
enhancement. We review the district court’s interpretation or
application of the sentencing guidelines de novo. United States
v. Upton, 91 F.3d 677, 687 (5th Cir. 1996). A defendant is a
career offender if, inter alia, he has at least two prior felony
convictions for either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1. The PSR stated that
Robertson had two prior convictions for driving while
intoxicated, both of which would qualify as felony convictions
under U.S.S.G. § 4B1.1.
A PSR generally bears sufficient indicia of reliability to
be considered as evidence by the trial judge in making guideline
determinations, especially when there is no evidence in rebuttal.
United States v. Alfaro, 919 F.2d 962, 966 (5th Cir. 1990).
Because driving while intoxicated is considered a crime of
violence for purposes of U.S.S.G. § 4B1.2, the district court did
No. 00-50267
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not err in applying the career offender provision when
determining Robertson’s sentence. United States v. DeSantiago-
Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000).
AFFIRMED.