United States v. Martinez-Carrillo

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 20, 2003

Charles R. Fulbruge III
Clerk
No. 02-41680
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PEDRO DAMIAN MARTINEZ-CARRILLO,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-02-CR-520-ALL
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Before JONES, WIENER, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Pedro Damian Martinez-Carrillo (“Martinez”) appeals his

guilty-plea conviction and sentence for possession of more than

100 kilograms of marijuana with intent to distribute, a violation

of 21 U.S.C. § 841(a)(1) and (b)(1).

Martinez argues that the district court improperly assessed

criminal-history points under the Sentencing Guidelines for his

two prior uncounseled federal convictions of illegal entry, for

which he was sentenced to terms of stand-alone probation.

*
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that this opinion should not be published and is not precedent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. 02-41680
-2-

He contends that use of these uncounseled convictions was

prohibited by Alabama v. Shelton, 535 U.S. 654 (2002).

As Martinez acknowledges, this argument is foreclosed by

United States v. Perez-Macias, 335 F.3d 421, 427-28 (5th Cir.

2003). He raises the argument only to preserve it for possible

further review.

Martinez also maintains that the sentencing scheme of

21 U.S.C. § 841 is facially unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466, 490 (2000). As Martinez concedes,

his argument is foreclosed by this court’s decision in United

States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000). He

raises the issue only to preserve it for possible further review.

The judgment of the district court is AFFIRMED.