United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 2, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10654
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-30-ALL-A
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Francisco Javier Rodriguez appeals his conviction and
sentence for illegal reentry after deportation. Rodriguez has
filed a motion for leave to file an out-of-time reply brief; that
motion is GRANTED. He first argues on appeal that the district
court erred in its application of U.S.S.G. § 4A1.2 by counting
three prior drug convictions separately, which increased his
criminal history score and resulted in a higher guideline range.
We conclude that Rodriguez has not shown that the district court
*
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that this opinion should not be published and is not precedent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. 03-10654
-2-
clearly erred in finding that the prior cases were not
consolidated. See Buford v. United States, 532 U.S. 59, 64-66
(2001); United States v. Moreno-Arredondo, 255 F.3d 198, 203 n.10
(5th Cir. 2001. “The applicability vel non of Tex. Penal Code
§ 3.03 does not affect our analysis.” United States v. Fitzhugh,
984 F.2d 147 n.18 (5th Cir. 1993)
The district court did not clearly err in finding that the
three prior offenses were unrelated. Rodriguez’s three
convictions involved three separate transactions over a three-
month period involving differing amounts of cocaine.
Furthermore, although Rodriguez was charged for all of the
offenses on the same day by the same judge and his sentences were
concurrent, he was indicted separately for each offense, each
indictment was assigned a different docket number, and the
sentences were not all the same length. The foregoing suggests
that the two offenses should not be considered consolidated for
federal sentencing purposes. See United States v. Huskey, 137
F.3d 283, 288 (5th Cir. 1998); United States v. Kates, 174 F.3d
580, 584 (5th Cir. 1999).
Rodriguez also argues that his guilty plea was not voluntary
because the district court did not admonish him that the
“aggravated felony” provision of 8 U.S.C. § 1326(b)(2) stated an
essential element of the offense to which he was pleading guilty.
He acknowledges that his arguments are foreclosed by circuit
precedent, but he seeks to preserve the issue for possible
No. 03-10654
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Supreme Court review in light of the Supreme court’s decision in
Apprendi v. New Jersey, 530 U.S. 466, 519 (2000). As Rodriguez
concedes, this issue is foreclosed. See Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998); United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000).
AFFIRMED.