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

                                                FILED
                                                                   July 1, 2009
                                 No. 08-20687
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

JULIO MARTINEZ-NARVAEZ, also known as Julio Narvaez Martinez, also
known as Pedro Salazar, also known as Daniel Lopez Castillo

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 4:07-CR-348-2


Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Julio Martinez-Narvaez pleaded guilty to one count of conspiracy to
commit fraud and related activity in connection with the transfer of five or more
false identification documents, in violation of 18 U.S.C. §§ 371 and 1028; two
counts of aiding and abetting fraud and related activity in connection with the
transfer of false identification documents, in violation of 18 U.S.C.§§ 2 and 1028;
and one count of illegally reentering the United States following deportation, in


      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-20687

violation of 8 U.S.C. § 1326. The presentence report (PSR) grouped the single
conspiracy count and the two aiding and abetting counts under the multiple-
count provisions of U.S.S.G. §§ 3D1.1-3D1.4. The PSR separately grouped the
illegal reentry count on the basis that it represented a distinct harm unrelated
to the other offenses. The district court adopted the recommended groupings
and sentenced Martinez-Narvaez to 33 months of imprisonment.
      Martinez-Narvaez argues that his sentence was unreasonable because the
district court erroneously applied the Guidelines. He particularly asserts that
the district court erred by not grouping together all of the counts of conviction.
He contends that the counts involve substantially the same harm because they
have the same victim (i.e., society at large) and the societal interests harmed by
the offenses are closely related. He argues that his sentence should be vacated
and the case remanded for resentencing because he would have been subject to
a lower guidelines range of imprisonment had the district court treated the
counts as related and not as separate groups.
      Section 3D1.1 of the Guidelines provides that when a defendant is
convicted of more than one count, the district court should group closely related
counts and then determine a combined offense level for all of the groups. Under
U.S.S.G. § 3D1.2, closely related counts are those that involve “substantially the
same harm.” Counts involve “substantially the same harm” when, inter alia,
they “involve the same victim and two or more acts or transactions connected by
a common criminal objective or constituting part of a common scheme or plan.”
§ 3D1.2(b). For offenses in which there are no identifiable victims (e.g., drug or
immigration offenses, where society at large is the victim), the “victim” is the
societal interest that is harmed. § 3D1.2, comment. (n.2). In such cases, the
counts are grouped together when the societal interests that are harmed are
closely related. Id.
      Martinez-Narvaez has failed to show that the societal interests harmed by
the instant offenses of conviction are sufficiently related to require that they be

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grouped under the Guidelines. The illegal reentry statute is designed to control
immigration and protect national security by precluding the reentry of aliens
with serious criminal records who may commit further offenses upon their illegal
return to this country. Conversely, there is no inherent connection between the
prohibition against false identification offenses and immigration matters. The
prohibition against false identity documents can be violated by both United
States citizens and aliens, and counterfeit documents can be used to establish
a false identity for reasons unrelated to immigration. Although an overlap may
occur where an alien illegally reenters the United States through the use of a
counterfeit immigration document that was produced in violation of § 1028, such
an overlap is not present in the instant case: Martinez-Narvaez was trafficking
in false identity documents that he manufactured and sold to other persons, i.e.,
the documents had no nexus to his own illegal reentry. Thus, Martinez-Narvaez
has not shown that the district court erred in treating the counts of his
conviction as separate groups for sentencing purposes. See § 3D1.2.
      Martinez-Narvarez also argues that his sentence was unreasonable
because the district court relied on facts to which he did not admit and which
were not proven to a jury beyond a reasonable doubt. In Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), the Supreme Court held that any fact (other than a
prior conviction) that is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt. The
district court did not violate Apprendi because the 33-month sentence imposed
in the instant case did not exceed any applicable statutory maximum. See § 371;
§ 1326(b)(1); § 1028(b)(1).
      AFFIRMED.




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