United States v. Martinez-Carrillo

* 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this opinion should not be published and is not precedent except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
F I L E D
September 27, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-40168
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARTIN MARTINEZ-CARRILLO,
also known as Carlos Alejandro Rivera-Perez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-03-CR-930-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Martin Martinez-Carrillo appeals his guilty-plea conviction
of and sentence for being found in the United States after
previously being deported. Martinez-Carrillo argues that plain
error occurred at sentencing when the Government did not verbally
recommend that he be sentenced at the low end of the guideline
range as required by the plea agreement and instead attempted to
influence the court by repeating negative facts about Martinez-
Carrillo to the court.

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No. 04-40168
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The Government’s promise to so recommend was satisfied by
the inclusion of the terms of the plea agreement in the
presentence report. See United States v. Reeves, 255 F.3d 208,
210-11 (5th Cir. 2001). Martinez-Carrillo’s argument that the
Government breached the plea agreement by emphasizing his past
involvement with firearms is also unavailing. The prosecutor’s
comments regarding Martinez-Carrillo’s criminal history were in
direct response to the court’s question as to whether there was
any redeeming information about Martinez-Carrillo that it had
overlooked. Such efforts by the Government to provide relevant
factual information to the court at sentencing do not violate a
plea agreement. See United States v. Block, 660 F.2d 1086, 1091
(5th Cir. 1981). Our determination that no plain error occurred
at sentencing is supported by the fact that the Government did
not raise the issue of sentencing Martinez-Carrillo to the high
end of the guideline range but, in fact, it was the court that
raised the issue of a possible upwards departure from the
guideline range. See United States v. Wilder, 15 F.3d 1292, 1301
(5th Cir. 1994). Martinez-Carrillo has not demonstrated plain
error. See Reeves, 255 F.3d at 210.
Martinez-Carrillo 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). As Martinez-Carrillo concedes, his argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224

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No. 04-40168
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(1998). Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; see also United States v. Dabeit,
231 F.3d 979, 984 (5th Cir. 2000). The judgment of the district
court is AFFIRMED.

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