IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51130
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PASCACIO CARMONA-ORTEGA, also known as Jesus
Carmona-Ortiz, also known as Jesus Jose Carmona,
also known as Gerardo Pena-Lopez,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
EP-01-CR-1027-ALL-DB
May 30, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Pascacio Carmona-Ortega appeals a 46-month sentence imposed
following his guilty plea to a charge of illegally entering and
being found in the United States after deportation, a violation of
8 U.S.C. § 1326.
Carmona-Ortega argues that the district court should have
*
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this opinion should not be published and is not precedent except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.
departed downward in sentencing him under the guidelines, on the
ground of cultural assimilation. The record shows that the district
court did not base its decision upon an erroneous belief that it
lacked the authority to depart.1
Carmona-Ortega contends that the district court should have
sentenced him under the guidelines that became effective on
November 1, 2001, even though he was sentenced two days prior to
that date. His argument that the relevant guideline is retroactive
because it is merely clarifying lacks merit because the amendment’s
purpose was to make substantive changes in the punishment for 18
U.S.C. § 1326 offenses.2
AFFIRMED.
1
United States v. Yanez-Huerta, 207 F.3d 746, 748 (5th Cir.
2000).
2
United States v. McIntosh, 280 F.3d 479, 485 (5th Cir.
2002).