United States Court of Appeals
Fifth Circuit
F I L E D
April 28, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-50898
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAIME REYES-ANCHONDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-219-ALL-DB
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Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:1
Jamie Reyes-Anchondo (Reyes) appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326(a) and (b). He contends that the
district court erred by going beyond the statute of conviction and
the indictment of his previous alien-smuggling offense to determine
that a 16-level increase in his offense level was warranted under
U.S.S.G. § 2L1.2(b)(1)(A)(vii) for alien-smuggling “for profit.”
1
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this opinion should not be published and is not precedent except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. 02-50898
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He also contends that his present indictment was defective for
failing to allege that the prior offense was for profit.
When determining whether an offense-level increase under
U.S.S.G. § 2L1.2 is warranted, the district court is not limited to
the conduct charged in the indictment of the prior offense, but may
go beyond the statute of conviction and charging instrument to
determine whether the increase is warranted. United States v.
Sanchez-Garcia, __ F.3d __ , No. 02-40827 (5th Cir. Jan. 24, 2003),
2003 WL 164156, *1. The court did not err by looking beyond the
statute and indictment of Reyes’s prior conviction to consider a
penalty-notice enhancement and Presentence Report (PSR) from the
prior case, both of which indicated that the prior offense was
committed for profit. The district court did not misapply the
guidelines.
Reyes failed to offer any rebuttal evidence to show that “the
PSR’s information is materially untrue, inaccurate or unreliable.”
See United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001).
Absent any such rebuttal evidence, the district court could
properly rely on the PSR to establish the sentencing range. See
id.; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995);
United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995). The
district court did not err by finding that the prior offense was
committed for profit.
Reyes’s claim that the for-profit factor was required to be
alleged in the indictment is foreclosed by Apprendi v. New Jersey,
No. 02-50898
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530 U.S. 466 (2000) and Almendarez-Torres v. United States, 523
U.S. 224 (1998). Because the prior conviction itself need not have
been alleged in the indictment, neither did the for-profit factor,
which merely affected the sentence within the statutory range
already warranted by the prior conviction. See 8 U.S.C. § 1326(b);
U.S.S.G. § 2L1.2(b)(1); United States v. Keith, 230 F.3d 784,
786-87 (5th Cir. 2000) (Apprendi affords no relief when sentence
enhanced within statutory range).
The district court’s judgment is AFFIRMED.