IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50522
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN MANUEL TREVINO-CHAVEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-40-ALL-SS
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January 6, 2003
Before DAVIS, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Manuel Trevino-Chavez appeals the sentence imposed
by the district court following his guilty plea to one count of
illegally reentering the United States after deportation. Trevino-
Chavez contends that the district court abused its discretion when
determining the extent of its upward departure from the sentencing
guidelines. He also argues that the sentencing provisions of
*
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this opinion should not be published and is not precedent except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. 02-50522
-2-
8 U.S.C. § 1326(b) are unconstitutional in light of the Supreme
Court’s holding in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Trevino-Chavez acknowledges that his Apprendi argument is
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for further Supreme Court review.
We have reviewed the record and the briefs submitted by
the parties and perceive no abuse of discretion in the district
court’s decision to depart upward. See United States v. Laury, 985
F.2d 1293, 1310 (5th Cir. 1993). Under the circumstances presented
to the district court, the extent of the upward departure was
reasonable. See United States v. Hawkins, 87 F.3d 722, 728 (5th
Cir. 1996).
As Trevino-Chavez concedes, his Apprendi argument is
foreclosed. See United States v. Dabeit, 231 F.3d 979, 984 (5th
Cir. 2000), cert. denied, 531 U.S. 1202 (2001). The judgment of
the district court is therefore AFFIRMED.
AFFIRMED.