* 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opinion should not be published and is not precedent except under the limited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.

United States Court of Appeals

Fifth Circuit

FILED

July 26, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41635

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ARNOLDO ANAYA-VALDEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

No. 7:04-CR-808-ALL

--------------------

Before SMITH, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Arnoldo Anaya-Valdez appeals the sentence imposed following

his guilty-plea conviction of being found unlawfully in the United

States after a previous deportation in violation of 8 U.S.C.

§ 1326(a) and (b). He challenges the determination that a criminal

history category of IV substantially under-represented the serious-
No. 05-41635

-2-

ness of his prior criminal conduct and the likelihood of recidivism. He argues that the district court erred when it assigned a

criminal history category of VI and sentenced him to thirty months

of imprisonment, nine months above the top of the pre-departure

range. He avers that the court erred by failing to provide an adequate statement of reasons. Finally, he urges that the “felony”

and “aggravated felony” provisions of § 1326(a) and (b) are

unconstitutional.

Although the record is uncertain regarding whether Anaya-Valdez preserved his arguments, we need not determine whether plain

error review governs, because the arguments fail even under the

abuse of discretion standard that governs upward departures. See

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). The

district court based its departure on U.S.S.G. § 4A1.3. AnayaValdez’s sentence is thus a “guidelines sentence.” See Smith,

440 F.3d at 707. This court reviews the decision to depart and the

extent of the departure for abuse of discretion, ultimately determining whether the sentence is unreasonable under 18 U.S.C.

§ 3553(a). United States v. Desselle, 450 F.3d 179, 182 (5th Cir.

2006); United States v. Simkanin, 420 F.3d 397, 415-16 (5th Cir.

2005), cert. denied, 126 S. Ct. 1911 (2006).

One factor the court considered in its upward departure was a

2002 arrest for misdemeanor possession of marihuana. Although an

arrest warrant was issued and remains outstanding, the record does

not indicate whether a trial is pending with regard to the 2002
No. 05-41635

-3-

arrest. The record is therefore uncertain regarding whether the

court erred by relying on the 2002 arrest. See U.S.S.G. § 4A1.3-

(a)(2)(D), (3); United States v. Jones, 444 F.3d 430, 434 & n.6

(5th Cir. 2006), petition for cert. filed (May 23, 2006)

(No. 05-11153). Any error was harmless, however, because the record indicates that the district court would have imposed the same

sentence had it not relied on Anaya’s 2002 arrest. See Williams v.

United States, 503 U.S. 193, 203 (1992); United States v. Kay, 83

F.3d 98, 100-01 (5th Cir. 1996).

The 2002 arrest was not the sole basis for the departure. The

district court upwardly departed because criminal history category IV substantially under-represented the likelihood of recidivism. That court is not required to predict recidivism with scientific certainty. See Simkanin, 420 F.3d at 418 & n.24. 

Anaya-Valdez has a significant history of violent and disruptive behavior, much of which took place while incarcerated. The

record indicates that he has a general disrespect for the law, and

prior punishment for criminal acts has not deterred him. The court

thus did not abuse its discretion when it used recidivism as a

basis for the departure. See U.S.S.G. § 4A1.3(a)(1). Additionally, the departure was not so extreme that a more detailed statement than that given by the district court was required. See,

e.g., United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994)

(en banc); United States v. McKenzie, 991 F.2d 203, 204-06 (5th

Cir. 1993). Moreover, as in United States v. Zuniga-Peralta, 442
No. 05-41635

-4-

F.3d 345, 347-49 (5th Cir. 2005), the record indicates the basis of

and reasons for the departure. The district court thus adequately

complied with § 3553(c)(2).

A departure was necessary based on Anaya-Valdez’s history and

characteristics, the need to promote respect for the law, and to

afford adequate deterrence, which are valid considerations under

§ 3553(a)(1), (2)(A), and (B). See Desselle, 450 F.3d at 182.

Also, the sentence is far shorter than the maximum statutory term

of ten years, and the departure’s magnitude is not unreasonable.

See 8 U.S.C. § 1326(a), (b); Jones, 444 F.3d at 433, 442 & n.62.

Finally, Anaya-Valdez argues that § 1326(b)’s treatment of

prior felony and aggravated felony convictions as sentencing factors rather than elements of the offense that must be found by a

jury is unconstitutional in light of Apprendi v. New Jersey, 530

U.S. 466 (2000). This constitutional argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although Anaya-Valdez contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule it

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); see also Rangel-Reyes v. United States, 2006

U.S. LEXIS 4513 (U.S. June 12, 2006). Anaya-Valdez properly concedes that his argument is foreclosed in light of Almendarez-Torres
No. 05-41635

-5-

and circuit precedent, but he raises it here to preserve it for

further review. 

For the foregoing reasons, the judgment is AFFIRMED.