United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2006
Charles R. Fulbruge III
No. 05-10285 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN LUEVANO-OROZCO, also known as Juan Leuvano-Orozco,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CR-148-ALL-A
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Luevano-Orozco appeals the sentence imposed following
his guilty-plea conviction for illegal reentry into the United
States following deportation in violation of 8 U.S.C. § 1326(a)
& (b). He 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).
Luevano-Orozco’s constitutional challenge is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Luevano-Orozco contends that Almendarez-Torres was
*
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this opinion should not be published and is not precedent except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.
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incorrectly decided and that a majority of the Supreme Court
would overrule Almendarez-Torres in light of Apprendi, we have
repeatedly rejected such arguments on the basis that Almendarez-
Torres remains binding. See United States v. Garza-Lopez,
410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298
(2005). Luevano-Orozco properly concedes that this argument is
foreclosed in light of Almendarez-Torres and circuit precedent,
but he raises it here to preserve it for further review.
Luevano-Orozco also argues that the district court erred in
departing upward based on improper factors not permitted under
U.S.S.G. § 4A1.3(a)(2). A post-Booker discretionary sentence
imposed within a properly calculated guidelines range is
presumptively reasonable. United States v. Alonzo, 435 F.3d 551,
553 (5th Cir. 2006). If the district court imposed a sentence
outside of the guideline range, it must give specific reasons so
that we can ascertain the reasonableness of the sentence. United
States v. Hardin, 437 F.3d 470-71 (5th Cir. 2006). The effect of
Booker is “to return essentially to the abuse-of-discretion
standard [for upward departures] employed prior to 2003.” United
States v. Simkanin, 420 F.3d 397, 416 (5th Cir. 2005), petition
for cert. filed (Jan. 25, 2006) (No. 05-948).
Luevano-Orzoco has not shown that the district court’s
upward departure was an abuse of discretion or unreasonable.
The district court properly considered factors that are
permissible under § 4A1.3(a)(2), including Luevano-Orozco’s old
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convictions involving similar or serious dissimilar conduct, see
§ 4A1.2, comment. (n.8); his juvenile adjudications, see United
States v. Hawkins, 87 F.3d 722, 730 (5th Cir. 1996); and lenient
sentences for prior convictions. See United States v. Lee,
358 F.3d 315, 328-29 (5th Cir. 2004). The district court did not
base its decision to depart upward on his arrest record. The
district court did not err in considering California criminal
record printouts of his prior convictions as these records
established the offenses, and he does not argue on appeal that
he was not previously convicted of these offenses. Further,
Luevano-Orozco had been deported seven times, and he returned to
commit additional crimes upon each reentry. The district court’s
decision to depart based on his likelihood to recidivate was
warranted and proper. See United States v. McDowell, 109 F.3d
214, 218 (5th Cir. 1997). Moreover, the 120-month sentence
imposed by the district court was well below the 240-month
statutory maximum sentence for the offense and was reasonable,
given Luevano-Orozco’s lengthy criminal history, his seven
previous deportations, the likelihood of recidivism, and the need
to protect the public. See United States v. Smith, 417 F.3d 483,
489-91 (5th Cir.), cert. denied, 126 S. Ct. 713 (2005); see also
United States v. Smith, 440 F.3d 704, 707-08 (5th Cir. 2006).
The district court provided sufficient, valid reasons for its
decision to depart upward and, therefore, the sentence was
reasonable. See Hardin, 437 F.3d at 470-71.
AFFIRMED.