United States v. Amilpas-Wences

* 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this opinion should not be published and is not precedent except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 27, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 03-41190
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE AMILPAS-WENCES, also known as
Oliver Amilpas-Benitez, also known as
Elidoro Amilpas-Benitez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(M-03-CR-454-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Amilpas Wences appeals his conviction and sentence for
attempted illegal entry. Consistent with a suggestion in the
presentence investigation report, the district court departed
upward for the sentence; Amilpas’ criminal history score was raised
by one point, from 3 (category II) to 4 (category III). The court
did so, in part, because of two misdemeanor convictions not
included in Amilpas’ criminal history score because he was under 18
and they occurred more than five years prior to the attempted

-- 1 of 4 --

2
reentry. See U.S.S.G. § 4A1.2(d)(2)(B). With a criminal history
category II, the guideline range would have been 15-21 months; with
a category III, it was 18-24 months. See U.S.S.G. Manual Ch. 5 Pt.
A (Sentencing Table). Amilpas was sentenced, inter alia, to 24
months’ imprisonment.
Amilpas raises three bases for challenging the upward
departure. At sentencing, however, he simply objected to any
upward departure. Because he did not object on the basis of any of
the bases he raises now, we review each basis only for plain error.
When we review upward departures for plain error, we affirm the
sentence if, inter alia, “on remand the district court could
reinstate the same sentence by relying on a reasonable application
of the Sentencing Guidelines”. United States v. Wheeler, 322 F.3d
823, 828 (5th Cir. 2003) (quoting United States v. Ravitch, 128
F.3d 865, 871 (5th Cir. 1997)). He also raises two issues
unrelated to the upward departure; both are foreclosed.
Citing United States v. Gentry, 31 F.3d 1039, 1041 (10th Cir.
1994), cert. denied, 516 U.S. 1001 (1995), Amilpas contends a
sentencing court may not consider stale convictions unless it
specifically makes findings that such convictions are either
similar or serious and dissimilar. The district court met any
requirements of specificity under Guidelines § 4A1.3 when it said
it “believe[d] that ... Amilpas’[] criminal history under

-- 2 of 4 --

3
represents the seriousness of his past criminal conduct ... and the
likelihood that he will commit future crimes”.
Amilpas also contends that the two stale convictions were
neither similar nor serious. Amilpas is correct that stale prior
convictions for dissimilar, non-serious conduct would, taken alone,
constitute an invalid basis for departure. See U.S.S.G. § 4A1.2,
comment. (n.8). The Sentencing Guidelines do not define “serious”
crimes; “serious” is not a legal category generally used to
distinguish between different types of crimes, and our court has
never addressed what constitutes “serious dissimilar” conduct. In
the absence of any precedent or other guidance, the district court
did not commit plain (“clear” or “obvious”) error. Furthermore,
the district court discussed the stale prior convictions only as
part of a broader, permissible basis for departure — that Amilpas’
presumptive guideline range failed to capture his likelihood of
recidivism. See United States v. Ashburn, 38 F.3d 803, 807 (5th
Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995).
Amilpas also contends that, even if the departure was
justified, its extent was unreasonable. The district court
departed upward by one criminal history point and imposed a
sentence three months longer than the maximum Amilpas faced without
the departure. There was no plain error.
Amilpas contends for the first time on appeal that a prior
state felony conviction for simple possession is not a drug

-- 3 of 4 --

4
trafficking crime and not an aggravated felony under 8 U.S.C. §
1101(a)(43)(B) or U.S.S.G. § 2L1.2(b)(1)(C). He concedes that his
argument is foreclosed by our precedent, citing United States v.
Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001), cert. denied, 534
U.S. 1146 (2002), and United States v. Hinojosa-Lopez, 130 F.3d
691, 693-94 (5th Cir. 1997).
Amilpas concedes that whether the “felony” and “aggravated
felony” provisions of 8 U.S.C. § 1326(b)(1)&(2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466
(2000), is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998); he raises it solely to preserve possible review by
the Supreme Court.
AFFIRMED

-- 4 of 4 --