United States v. Ontiveros

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21113
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL JESSIE ONTIVEROS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-135-1
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October 30, 2002
Before DeMOSS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Paul Jessie Ontiveros appeals from his sentence following
his guilty-plea conviction for being a felon in possession of a
firearm. Ontiveros argues that his sentence violates Apprendi v.
New Jersey, 530 U.S. 466 (2000). Specifically, Ontiveros asserts
that the sentencing enhancements resulting in the presentence
report’s guideline range calculation predisposed the district
court to sentence him at the high end of the statutory range.

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No. 01-21113
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Ontiveros challenges the district court’s authority to impose
sentencing enhancements based only upon a finding of a
preponderance of the evidence. Because Ontiveros did not raise
his Apprendi challenge in the district court, we review for plain
error. See United States v. Moreno, 289 F.3d 371, 372 (5th Cir.
2002).
Although Ontiveros’ sentencing enhancements resulted in a
guideline sentence beyond the statutory range, he was
nevertheless sentenced to the ten-year statutory maximum pursuant
to 18 U.S.C. § 924(a)(2). Accordingly, there was no Apprendi
violation. See United States v. Doggett, 230 F.3d 160, 166 (5th
Cir. 2000), cert. denied, 531 U.S. 1177 (2001); United States v.
Keith, 230 F.3d 784, 787 (5th Cir. 2000), cert. denied, 531 U.S.
1182 (2001).
AFFIRMED.

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