United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2004
Charles R. Fulbruge III
Clerk
No. 04-40371
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RIVAS-MARTINEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
USDC No. B-03-CR-853-ALL
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Jose Rivas-Martinez appeals his sentence imposed following
his guilty plea conviction for illegal reentry into the United
States following deportation. Martinez was sentenced to a term
of imprisonment of 24 months, to be followed by a three-year term
of supervised release. Rivas argues that the district court
plainly erred in assigning him criminal history points for his
Texas misdemeanor convictions for evading arrest and failing to
identify himself to a peace officer because they are similar to
*
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this opinion should not be published and is not precedent except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. 04-40371
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offenses listed in U.S.S.G. § 4A1.2(c)(1), which are not counted
in calculating criminal history points.
Because Rivas filed no objections to the PSR, review is for
plain error. See United States v. Calverley, 37 F.3d 160, 162-64
(5th Cir. 1994) (en banc). Rivas’s prior convictions for evading
arrest and failure to identify himself to a peace officer each
resulted in a 20-days sentence of imprisonment and were not
similar to his instant offense of conviction. See U.S.S.G.
§ 4A1.2(c). The offenses were similar to the offenses of
resisting arrest and providing false information to a peace
officer, which are excluded from consideration in assigning
criminal history points if the sentence imposed is for less than
one year of imprisonment. Id.; United States v. Moore, 997 F.2d
30, 34-35 & n.6 (5th Cir. 1993); United States v. Reyes-Maya,
305 F.3d 362, 367-68 (5th Cir. 2002). Therefore, the district
court erroneously assigned Rivas criminal history points for his
prior misdemeanor convictions for evading arrest and failure to
identify himself to a peace officer.
Because the errors resulted in Rivas receiving a higher
sentencing guideline range, his substantial rights were affected
by the error. See United States v. Aderholt, 87 F.3d 740, 744
(5th Cir. 1996). Thus, the errors were plain errors warranting a
resentencing without consideration of the two additional criminal
history points based on Rivas’s prior misdemeanor convictions for
No. 04-40371
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evading arrest and failing to identify himself to a peace
officer.
Rivas also argues that the sentencing enhancements under
8 U.S.C. § 1326(b) are unconstitutional in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). He further argues that if
Blakely v. Washington, 124 S. Ct. 2531 (2004), is applied to the
federal sentencing guidelines, his sentence should be
recalculated.
Rivas concedes that his arguments are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and by
this court’s decision in United States v. Pineiro, 377 F.3d 464,
473 (5th Cir. 2004), petition for cert. filed, (July 14, 2004)
(No. 03-30437), but he states that he raises the issues to
preserve them for further review.
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). This court must follow Almendarez-Torres
“unless and until the Supreme Court itself determines to overrule
it.” Dabeit, 231 F.3d at 984 (internal quotation marks and
citation omitted). Furthermore, this court has held that Blakely
does not apply to the Federal Sentencing Guidelines. Pineiro,
377 F.3d at 473. This argument is without merit.
Rivas’s sentence imposed is VACATED, and the case is
REMANDED to the district court for resentencing in accordance
with this opinion.
No. 04-40371
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SENTENCE VACATED; REMANDED FOR RESENTENCING.