United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2005
Charles R. Fulbruge III
Clerk
No. 04-20874
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS VENTURA ROSALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CR-97-ALL
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jesus Ventura-Rosales (“Ventura”) appeals his sentence
following his guilty-plea conviction for illegal reentry after
deportation subsequent to conviction for an aggravated felony, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Ventura argues that
the district court’s upward departure pursuant to U.S.S.G.
§ 4A1.3 was erroneous because his prior offenses were not
egregious, that the district court had a mistaken understanding
of the facts, and that the district court failed adequately to
explain the reasons for departure.
*
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this opinion should not be published and is not precedent except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. 04-20874
-2-
Ventura had an offense level of 13, a criminal history
category of VI, and a Guidelines range of 33-41 months. The
district court departed upward to an offense level of 15 and
imposed a sentence of 51 months. The court explained that it was
moving up incrementally two levels because of Ventura’s long
criminal history, which included numerous offenses for which no
criminal history points were assigned, because Ventura had been
deported on four prior occasions, and because of Ventura’s
likelihood to recidivate. Guided by the factors in 18 U.S.C.
§ 3553(a), we conclude that there is no reversible error and that
the district court’s sentence was reasonable for the reasons
stated by the district court. See United States v. Simkanin, __
F.3d __, No. 04-10531, 2005 WL 1847218 at *15-17 (5th Cir. Aug.
5, 2005); United States v. Smith, __ F.3d __, No. 03-10171, 2005
WL 1663784 at *4-5 (5th Cir. July 18, 2005).
Ventura also argues that the felony and aggravated felony
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), but he
correctly concedes that his argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998). We must follow the
precedent set in Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” United States v.
Mancia-Perez, 331 F.3d 464, 470 (5th Cir.), cert. denied, 540
U.S. 935 (2003)(internal quotation and citation omitted).
AFFIRMED.