United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-20387
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO MADRIGAL-FERREIRA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CR-669-ALL
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Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
Pedro Madrigal-Ferreira appeals his sentence following his
guilty plea conviction of illegal reentry. Madrigal first argues
that the district court erred in considering higher offense
levels, as opposed to higher criminal history categories, when it
departed upward based upon a dismissed count pursuant to U.S.S.G.
§ 5K2.21. This court has not addressed the issue whether a
sentencing court must depart horizontally when departing pursuant
*
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that this opinion should not be published and is not precedent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. 03-20387
-2-
to § 5K2.21; thus, Madrigal has not shown that the district court
plainly erred in so doing. See United States v. Hull, 160 F.3d
265, 271-72 (5th Cir. 1998).
Second, Madrigal asserts that, because the written judgment
does not conform to the court’s oral pronouncement of the
sentence, this case must be remanded to the district court for it
to amend the written judgment by striking the condition of
release that Madrigal not possess any other dangerous weapon.
This court recently addressed this same issue and rejected it.
See United States v. Torres-Aguilar, ___ F.3d ___, No. 03-40055,
2003 WL 22853762 (5th Cir. Dec. 3, 2003). Accordingly, the issue
is foreclosed.
AFFIRMED.