United States v. Guerrero-Zavala

* 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that this opinion should not be published and is not precedent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
April 20, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-51063
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
INOCENCIO GUERRERO-ZAVALA,
also known as Mario Alberto Guerrero-Zavala,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-03-CR-821-ALL-DB
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Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
Inocencio Guerrero-Zavala (Guerrero) appeals his sentence
for illegal reentry following deportation. Guerrero contends
that the district court erred by failing to treat his prior
state-court assault convictions as “related cases” for purposes
of U.S.S.G. § 4A1.2(a)(2). Among other things, Guerrero contends
that the evidence demonstrated the “functional consolidation” of

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the cases based on an agreement among the parties and the court
to dispose of them in the same proceeding.
A district court’s determination that cases were
consolidated for trial or sentencing is reviewed only for clear
error. See United States v. Moreno-Arredondo, 255 F.3d 198, 203
n.10 (5th Cir. 2001). “[A] finding that prior cases were
‘consolidated’ will require either some factual connexity between
them, or else a finding that the cases were merged for trial or
sentencing.” United States v. Huskey, 137 F.3d 283, 288 (5th
Cir. 1998)(citation omitted).
As Guerrero concedes, his prior assault convictions
constituted separate offenses that occurred on different dates.
The cases were filed under separate cause numbers, which they
respectively retained through sentencing; the cases were not
consolidated under a single docket number. Despite Guerrero’s
argument to the contrary, “[t]his court has [] rejected the
proposition that cases must be considered consolidated simply
because two convictions have concurrent sentences.” United
States v. Garcia, 962 F.2d 479, 482 (5th Cir. 1992)(internal
quotation marks and citation omitted), abrogated on a different
ground by Buford v. United States, 532 U.S. 59, 63-66 (2001).
Furthermore, the mere fact that both assaults stemmed from
domestic disputes is insufficient to make the offenses factually
related since more is required than a showing that the crimes
were similar. See id. Given these circumstances, the district

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court did not clearly err in finding that Guerrero’s prior
assault offenses were not “related” to one another. See Moreno-
Arredondo, 255 F.3d at 203 n.10.
Guerrero also contends that the felony conviction that
resulted in his increased sentence under 8 U.S.C. § 1326(b)(2)
was an element of the offense that should have been charged in
the indictment. He acknowledges that his argument is foreclosed
by the Supreme Court’s decision in Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the issue
for Supreme Court review in light of the decision in Apprendi v.
New Jersey, 530 U.S. 466 (2000). Guerrero’s contention lacks
merit because Apprendi did not overrule Almendarez-Torres. See
Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
AFFIRMED.

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