United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 3, 2003
Charles R. Fulbruge III
Clerk
No. 02-51264
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR PONCE-PONCE, also known as Javier
Aguilar-Dominguez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-02-CR-1323-ALL-DB
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Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Salvador Ponce-Ponce (Ponce) appeals his sentence for
illegal reentry following deportation. Ponce contends that the
district court erred in its application of U.S.S.G. § 4A1.2(a)(2)
by ruling that his eleven prior burglary convictions were not
“related” to one another and, accordingly, considering each of
them separately in determining Ponce’s criminal-history score.
*
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that this opinion should not be published and is not precedent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. 02-51264
-2-
A district court’s determination that cases were
consolidated for trial or sentencing is reviewed only for clear
error. See United States v. Moreno-Arredondo, 255 F.3d 198, 203
n.10 (5th Cir. 2001). “[A] finding that prior cases were
‘consolidated’ will require either some factual connexity between
them, or else a finding that the cases were merged for trial or
sentencing”. United States v. Huskey, 137 F.3d 283, 288 (5th
Cir. 1998)(citation omitted). A formal consolidation order is
not a prerequisite to a “consolidation” finding. Id. However,
even if factually distinct offenses are sentenced “on the same
day and/or in the same proceeding” or result in the “imposition
of identical, concurrent sentences,” they are not considered
related under § 4A1.2 unless there is a consolidation order. Id.
Accordingly, the district court did not clearly err in
finding that Ponce’s eleven prior offenses were not “related” to
one another. Although Ponce pleaded guilty and the state court
imposed sentence for all of these offenses on the same day, each
offense was prosecuted under a separate cause number and was
addressed in a separate judgment, thus suggesting that they
should not be considered consolidated for federal sentencing
purposes. See Buford v. United States, 532 U.S. 59, 64-66
(2001).
Ponce also contends that the felony conviction that resulted
in his increased sentence under 8 U.S.C. § 1326(b)(2) was an
element of the offense that should have been charged in the
No. 02-51264
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indictment. He acknowledges that his 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 Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Ponce’s contention lacks merit
because 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).
AFFIRMED.