United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-21243
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CONRADO PENA-ORDONEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-150-ALL
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Before BARKSDALE, EMILIO M. GARZA and DENNIS, Circuit Judges.
PER CURIAM:*
Conrado Pena-Ordonez (Pena) appeals his conviction and the 60-
month prison sentence he received upon his plea of guilty to
a charge of having been present in the United States after
deportation, a violation of 8 U.S.C. § 1326. We AFFIRM.
Pena contends that the district court reversibly erred
in sentencing him under the guidelines, by departing upward in
determining his term of imprisonment. The district court did not
*
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that this opinion should not be published and is not precedent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. 02-21243
-2-
reversibly err, however, because the court gave acceptable reasons
for departing and the extent of the departure is reasonable.
United States v. Hefferon, 314 F.3d 211, 227 (5th Cir. 2002).
Furthermore, it is clear that Pena’s sentence
would have been no different if the district court had disregarded
the fact that he had lied to law enforcement authorities in
connection with his prior offenses. See Williams v. United States,
503 U.S. 193, 204 (1992).
Pena 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 indictment and
proved to a jury beyond a reasonable doubt. He asserts that 8
U.S.C. § 1326(a)(1) and (2) are unconstitutional on their face and
as applied in his case. 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). Pena’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.