United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 16, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-41097
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAIS BENAVIDEZ-DIAZ, also known as Manuel Ramirez-Martinez,
Defendant-Appellant.
Consolidated with
No. 02-41099
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAIS BENAVIDEZ-DIAZ, also known as Braulio Benavidez-Diaz,
also known as Manuel Ramirez-Martinez,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. M:00-CR-606-1 & B:01-CR-625-1
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
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this opinion should not be published and is not precedent except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.
Isais Benavidez-Diaz challenges the sentence imposed following
his conviction for illegal presence in the United States. For the
first time on appeal, Benavidez contends that the district court
improperly departed in imposing his sentence.
Because neither the plain text of the guidelines nor Fifth
Circuit law clearly indicates that the district court cannot base
departures under U.S.S.G. §§ 4A1.3 and 5K2.0 on the same prior
misconduct, Benavidez cannot show plain error. United States v.
Olano, 507 U.S. 725, 734 (1993). Further, Benavidez’s reliance on
United States v. Lara, 975 F.2d 1120, 1126 n.7 (5th Cir. 1992) is
without merit as the court departed upward on the basis of
§ 5K2.0 regarding the offense of conviction, not merely in order to
adjust Benavidez’s criminal history score upward to account for
behavior not resulting in a conviction.
Benavidez also contends that 21 U.S.C. § 841 is facially
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). As Benavidez concedes, his argument is foreclosed by Fifth
Circuit precedent. See United States v. Slaughter, 238 F.3d 580,
582 (5th Cir. 2000). He raises the issue only to preserve it for
Supreme Court review.
Accordingly, the district court’s rulings in both 02-41097 and
02-41099 are AFFIRMED.
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