          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                    FILED
                                                                 December 17, 2007
                                 No. 07-40112
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JOEL LEDEZMA-ESPARZA

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:06-CR-606-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Joel Ledezma-Esparza pleaded guilty to an indictment charging him with
illegal reentry in violation of 8 U.S.C. § 1326. At sentencing, the district court
departed upward pursuant to U.S.S.G. § 4A1.3(a)(4) and sentenced Ledezma-
Esparza to an 84-month term of imprisonment. Ledezma argues that the district
court did not comply with the methodology set forth in § 4A1.3(a)(4) to determine
an appropriate sentence; that the reasons cited by the court are inadequate to
support the extent of the departure; and that the district court failed to consider

      *
      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should not be published and is not precedent except under the limited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.
                                   No. 07-40112

the disparity between Ledezma-Esparza’s sentence and the guidelines sentences
received by similarly-situated defendants.
      The Sentencing Guidelines permit an upward departure if the district
court believes that there is reliable information suggesting that the seriousness
of the defendant’s criminal history or the likelihood of recidivism is not
adequately represented by the applicable sentencing guideline range. U.S.S.G.
§ 4A1.3(a)(1). Upward departures under the Sentencing Guidelines are reviewed
for reasonableness. United States v. Zuniga-Peralta, 442 F.3d 345, 347 (5th
Cir.), cert. denied, 126 S. Ct. 2954 (2006). An upward departure is within the
discretion of the district court and, thus, reasonable if it “advance[s] the
objectives set forth in 18 U.S.C. § 3553(a)(2)” and (2) is “justified by the facts of
the case.” Zuniga-Peralta, 442 F.3d at 347.
      In this case, the district court departed upward based on the need to
protect the public and the fact that Ledezma-Esparza’s violent criminal history
was not adequately taken into account by the Sentencing Guidelines. The record
shows that both the decision to depart and the extent of the departure were
within the discretion of the district court. Zuniga-Peralta, 442 F.3d at 347;
United States v. Ashburn, 38 F.3d 803, 809 (5th Cir. 1994).
      Ledezma-Esparza also maintains the "felony" and "aggravated felony"
provisions of 8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in the light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir.2007), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).
      AFFIRMED.




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