                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 January 10, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-10206
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

VICTOR MANUEL VARELA-CASTILLO,

                                    Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Northern District of Texas
                    USDC No. 3:04-CR-143-ALL-P
                       --------------------

Before BARKSDALE, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Victor Manuel Varela-Castillo appeals his conviction and

sentence for illegal reentry following deportation.     He argues

that the district court misapplied the sentencing guidelines by

counting his prior conviction for discharge of a firearm in his

criminal history score and that the provisions of 8 U.S.C.

§ 1326(b) are unconstitutional in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000).




     *
       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this opinion should not be published and is not precedent except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.
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                                 -2-

     Varela contends that his prior conviction for discharge of a

firearm is similar to the offense of disorderly conduct under

Texas law and therefore should be exempt from calculation in his

criminal history score pursuant to U.S.S.G. § 4A1.2(c)(1).

Absent the one criminal history point received for this prior

conviction, the sentencing guidelines range would have been 30-37

months rather than 33-41 months.

     This court reviews the district court’s application of the

sentencing guidelines de novo.     United States v. Villegas, 404

F.3d 355, 360 (5th Cir. 2005).    In determining whether a prior

offense is similar to a listed offense in § 4A1.2(c)(1) and is

therefore exempt from calculation, this court employs a “common

sense approach which relies on all possible factors of

similarity.”    United States v. Hardeman, 933 F.2d 278, 281 (5th

Cir. 1991).    The factors to consider include:   “a comparison of

punishments imposed for the listed and unlisted offenses, the

perceived seriousness of the offense as indicated by the level of

punishment, the elements of the offense, the level of culpability

involved, and the degree to which the commission of the offense

indicates a likelihood of recurring criminal conduct.”     Id.

Each offense-similarity comparison is fact specific.     United

States v. Lamm, 392 F.3d 130, 132 (5th Cir. 2004).

     The two offenses — discharge of a firearm, and disorderly

conduct by discharging a firearm in a public place other than a

public road or a sport shooting range — rank as different classes
                              No. 05-10206
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of misdemeanor under Texas law.       TEX. PENAL CODE ANN. §§ 42.12,

42.01(a)(7), (d).      As such, the maximum possible punishment for

discharge of a firearm in certain municipalities is more severe

than disorderly conduct.     TEX. PENAL CODE ANN. §§ 12.21, 12.22.

Varela received eleven months of probation for his conviction.

Disorderly conduct by discharge of a firearm is punishable by a

maximum term of imprisonment of 180 days.       TEX. PENAL CODE ANN. §§

42.01(a)(7), (d), 12.22.     The crime of discharge of a firearm in

certain municipalities is punishable by a maximum term of

imprisonment of one year.     TEX. PENAL CODE ANN. § 12.21.

     To be convicted of discharge of a firearm, a person must

recklessly discharge a firearm inside the corporate limits of a

municipality with a population of 100,000 or more.        TEX. PENAL

CODE ANN. §42.12(a).    A person commits the offense of disorderly

conduct by intentionally or knowingly discharging a firearm in a

public place other than a public road or a sport shooting range.

TEX. PENAL CODE ANN. § 42.01(a)(7).

     The two offenses are dissimilar in most respects, having

different punishments, different assigned grades of crime, and

different elements and involving different types of criminal

intent.   Considering all the factors and employing the common

sense approach, this court concludes that Varela’s prior

conviction for discharge of a firearm is not similar to the

offense of disorderly conduct.      Hardeman, 933 F.2d at 281.     The

offense was properly included in his criminal history score.
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                                -4-

     Varela’s constitutional challenge to § 1326(b) is foreclosed

by Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

Although Varela contends that Almendarez-Torres was incorrectly

decided and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), we have repeatedly rejected such arguments on the

basis that Almendarez-Torres remains binding.   See United States

v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126

S. Ct. 298 (2005).   Varela properly concedes that his argument is

foreclosed in light of Almendarez-Torres and circuit precedent,

but he raises it here to preserve it for further review.

     Accordingly, the judgment of the district court is AFFIRMED.
