IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51036
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GARCIA-FLORES, also known as Moises Garcia, also
known as Carlos Garcia, also known as Flores Carlos Garcia, also
known as Carlos F. Garcia,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-99-CR-432-ALL
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May 29, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Carlos Garcia-Flores (“Garcia”) appeals his 50-month
sentence for illegal reentry after removal, in violation of 8
U.S.C. § 1326. Garcia challenges the district court’s upward
departure pursuant to U.S.S.G. § 4A1.3, p.s., which allows a
departure when a defendant’s criminal history category does not
adequately reflect the seriousness of his past criminal conduct
*
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that this opinion should not be published and is not precedent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. 01-51036
-2-
or the likelihood that the defendant will commit other crimes.
We review the district court’s decision to depart from the
Sentencing Guidelines for abuse of discretion. United States v.
Winters, 174 F.3d 478, 482 (5th Cir. 1999); United States v.
Ashburn, 38 F.3d 803, 807 (5th Cir. 1994)(en banc).
We find that the district court stated acceptable reasons
for departure. See U.S.S.G. § 4A1.3, p.s.; United States v.
Route, 104 F.3d 59, 64 (5th Cir. 1997). Furthermore, in
explaining its upward departure to offense level 15, the district
court indicated that it had considered intermediate offense
levels. See United States v. Lambert, 984 F.2d 658, 662-63 (5th
Cir. 1993)(en banc). We also conclude that the sentence imposed
was reasonable in light of the nature and extent of Garcia’s
prior convictions, both counted and uncounted. See United States
v. Alford, 142 F.3d 825, 831 (5th Cir. 1998) (affirming upward
departure based in part on uncounted convictions).
Garcia also argues that because his indictment did not
allege a prior felony conviction, it charged only a violation of
8 U.S.C. § 1326(a), which carries a maximum sentence of two
years’ imprisonment. Garcia acknowledges that this argument was
rejected in Almendarez-Torres v. United States, 523 U.S. 224
(1998), but he seeks to preserve the issue for further review in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000).
AFFIRMED.