United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 3, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30796
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN ROMERO-RAMIREZ,
also known as Juan Ramirez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 03-CR-23-ALL
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Romero-Ramirez (Romero) appeals his sentence for one
count of illegal reentry into the United States by a removed
alien, a violation of 8 U.S.C. § 1326. Romero argues that the
district court should have permitted him to collaterally attack
his prior state court conviction at the federal sentencing
hearing because that prior conviction is void. Romero further
argues that the district erred in using the conviction to compute
*
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that this opinion should not be published and is not precedent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. 03-30796
-2-
his criminal history category under U.S.S.G. § 4A1.1(c). Romero
also argues that the district court erred in upwardly departing
because it did not adequately explain the reasons for the
departure nor explain why the sentence it settled upon was
appropriate.
The district court did not err in prohibiting Romero from
collaterally attacking his state court conviction because a
defendant has no right to bring such a challenge at sentencing,
with the sole exception of a conviction obtained in violation of
the right to counsel. See Daniels v. United States, 532 U.S.
374, 382 (2001); Custis v. United States, 511 U.S. 485, 496-97
(1994). Therefore, the district court did not err in using the
conviction to compute Romero’s criminal history category under
U.S.S.G. § 4A1.1(c).
Because Romero failed to object to the district court’s
upward departure, the issue is reviewed for plain error. See
United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998). The
district court determined that the departure was warranted
because Romero’s history of repeated reentries and violent crimes
was not adequately taken into account by the Guidelines. The
court concluded that the departure adequately reflected the
seriousness of Romero’s prior criminal conduct and would serve to
deter Romero in the future. The district court’s reasons were
acceptable and adequately explained. See United States v.
Hawkins, 87 F.3d 722, 728 (5th Cir. 1996).
No. 03-30796
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AFFIRMED.