United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51035
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR NAIN ARROYO-VILLAFANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-02-CR-166-ALL
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Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Hector Nain Arroyo-Villafana (“Arroyo”) appeals the sentence
imposed following his guilty plea conviction for illegal re-entry
into the United States after commission of an aggravated felony.
Arroyo challenges both the reasons for and the extent of the
district court’s upward departure pursuant to U.S.S.G. § 4A1.3.
He also contends that the sentencing provision found in 8 U.S.C.
*
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that this opinion should not be published and is not precedent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. 02-51035
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§ 1326(b)(2) is unconstitutional based on Apprendi v. New Jersey,
530 U.S. 466 (2000).
Contrary to Arroyo’s contentions, the record shows that the
district court did not base its decision to depart upwardly on
speculation that Arroyo had further unknown convictions or place
the burden of proof on Arroyo to show that he would not commit
future crimes. The district court properly considered Arroyo’s
use of multiple aliases and dates of birth in determining that
his criminal history category did not adequately reflect the
likelihood that he would commit other crimes. See United States
v. Rosogie, 21 F.3d 632, 634 (5th Cir. 1994).
Given Arroyo’s 13 prior convictions, four deportations, 19
criminal history points, and use of numerous aliases and dates of
birth, the district court’s conclusion that Arroyo’s criminal
history category failed to adequately reflect the seriousness of
his past criminal conduct or the likelihood that he would commit
other crimes is not clearly erroneous. See id.; United States v.
Laury, 985 F.2d 1293, 1310 (5th Cir. 1993). While the guidelines
did incorporate some of Arroyo’s criminal history into his
offense level, the district court’s findings provided
justification for the upward departure, given Arroyo’s criminal
history points and the relatively small adjustment to his offense
level. See United States v. Ford, 996 F.2d 83, 87-88 (5th Cir.
1993). Accordingly, the district court’s decision to depart
No. 02-51035
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upwardly was not an abuse of discretion. See id.; Laury, 985
F.2d at 1310.
The extent of the district court’s departure was reasonable
and within the wide discretion afforded to the district court.
See United States v. Hawkins, 87 F.3d 722, 728 (5th Cir. 1996);
Rosogie, 21 F.3d at 634. The district court properly remained
within the guidelines by departing to a higher offense level
within criminal history category VI. See United States v.
Lambert, 984 F.2d 658, 663 (5th Cir. 1993) (en banc). While the
district court did not explicitly explain why intermediate
offense levels were rejected, we have rejected the notion that a
district court, when departing on the basis of U.S.S.G. § 4A1.3,
must “go through a ritualistic exercise in which it mechanically
discusses each criminal history category it rejects en route to
the category that it selects.” Id.
Arroyo concedes that his argument that 8 U.S.C. § 1326(b)(2)
is unconstitutional is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), but asserts that the decision
has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). He seeks to preserve his argument for further
review.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). As Arroyo acknowledges, this court must follow
Almendarez-Torres “unless and until the Supreme Court itself
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determines to overrule it.” Dabeit, 231 F.3d at 984 (internal
quotation marks and citation omitted).
For the foregoing reasons, Arroyo’s sentence is AFFIRMED.