                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                                                             June 19, 2003
                      FOR THE FIFTH CIRCUIT
                       ____________________             Charles R. Fulbruge III
                                                                Clerk
                             02-40598
                       ____________________

                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                      JESUS BENITEZ-TORRES,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                          (C-01-CR-249-1)
_________________________________________________________________

Before SMITH and BARKSDALE, Circuit Judges, and FITZWATER,
District Judge*.

PER CURIAM:**

     Based on numerous issues, some of which are reviewed only for

plain error, Jesus Benitez-Torres challenges his conviction for

attempted murder of a Border Patrol Agent and his sentence for that

offense, as well as for two illegal alien-related offenses to which

he pleaded guilty. Primarily at issue are enhancements to Benitez’

base offense level under the Sentencing Guidelines.    AFFIRMED.



     *
      District Judge of the Northern District of Texas, sitting by
designation.
     **
      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this opinion should not be published and is not precedent except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.
                                 I.

     On 26 July 2001, Benitez drove an automobile into the United

States Border Patrol checkpoint near Falfurrias, Texas.         In his

vehicle were his minor daughter and three adults, two of whom were

undocumented aliens.    Border Patrol Agents questioned Benitez-

Torres and the passengers about their immigration status; all

claimed to be American citizens.       Because the Agents doubted those

claims, the vehicle was referred to the secondary inspection area.

There, one of the adults admitted she was illegally in the United

States; she was detained.

     Because of this admission, Benitez was placed under arrest.

The Agents ascertained Benitez had been previously deported. While

his arrest was being processed, Benitez was restrained.

     Benitez escaped and ran to his vehicle.        A number of Agents

pursued him.   Before Benitez was able to close the driver’s-side

door, Agent Garcia reached through it to seize Benitez; Agent

Cantu, through the rear driver’s-side window to seize Benitez’

chin.

     Benitez accelerated the vehicle in reverse; another Agent

fired a shot, striking Benitez in the hand.           Meanwhile, Agent

Garcia had been thrown to the ground by the open driver’s-side

door.   The following occurred as Benitez continued in reverse at a

“very high rate of speed”:   Agent Garcia was dragged for 40 feet by




                                   2
the open door; and the driver’s-side electric rear window closed,

trapping Agent Cantu’s right arm.

     Agent Garcia was dislodged when Benitez’ vehicle struck a

vehicle belonging to the Green family; the impact turned the

Greens’ vehicle “almost ... 90 degrees”.          When Benitez hit that

vehicle, Agent Cantu, trapped by the driver’s-side rear window, was

thrown    backwards   against   the   rear   quarter   panel    of   Benitez’

vehicle.    The Agent was then able to stand beside the vehicle, but

with his right arm still trapped.

     Immediately, Benitez drove forward at a “very high rate of

speed”. To prevent being dragged, Agent Cantu lodged his left foot

inside the still-open driver’s-side front door; he yelled at

Benitez, telling him to stop and that Benitez was “going to kill

[him]”.    Instead, Benitez continued accelerating (up to 70 miles

per hour) and began to swerve in an apparent attempt to shake Agent

Cantu off the vehicle.

     With his left foot, Agent Cantu was able to depress the

emergency brake; the vehicle began to slow.            Benitez then began

swerving toward the side of the road in an effort to brush the

Agent against trees.     Consequently, with his left arm, Agent Cantu

began to wrestle for control of the steering wheel.

     In response, Benitez, while still accelerating with his right

foot, began to kick at Agent Cantu with his left.              When this met

with no success, Benitez stopped depressing the accelerator and


                                      3
began kicking the Agent with both feet.       Finally, in fear for his

life, Agent Cantu removed his weapon with his left hand and shot

Benitez in the chest.      The vehicle coasted to a stop less than

three-quarters of a mile from the checkpoint.

     As a result of Benitez’ conduct:           Agent Garcia received

numerous bruises and abrasions and was hospitalized; one of the

Greens’ children bumped his face, causing a bloody nose; Agent

Cantu received minor bruises; and operations at the checkpoint were

disrupted.

     Benitez was charged with:          (1) illegal transporting, and

attempted illegal transporting, of an alien, in violation of 8

U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii) and 18 U.S.C. § 2; (2)

illegal reentry into the United States, after having been deported

following a felony conviction, in violation of 8 U.S.C. § 1326(a)

and (b)(1); (3) attempted murder of a Border Patrol Agent (Agent

Cantu), in violation of 8 U.S.C. §§ 1113 and 1114; and (4) assault

with a deadly weapon on a Border Patrol Agent (Agent Garcia), in

violation of 18 U.S.C. § 111(a)(1) and (b).

     Benitez pleaded guilty to the alien transportation and illegal

reentry counts.     A jury convicted him of attempted murder; it

acquitted him on the assault charge.

     The presentence investigation report (PSR) grouped the alien

transportation    and   attempted   murder   convictions,   pursuant   to

Sentencing Guidelines § 3D1.2(c); the base offense level was 12.


                                    4
The PSR recommended that the level be reduced by three because the

transportation offense was not committed for profit.       See U.S.S.G.

§ 2L1.1(b)(1).

     The PSR recommended that the base offense level be enhanced as

follows:   by two, because Benitez had previously been convicted of

a felony (illegal reentry in 1999), see U.S.S.G. § 2L1.1(b)(3);

pursuant to Guidelines § 2L1.1(b)(4)(A), to 22, because a firearm

was discharged during the offense; by two, to account for the risk

of death or injury to non-Agents (the Green family) created by

Benitez’ conduct, see U.S.S.G. § 2L1.1(b)(5); by two, pursuant to

Guidelines § 2L1.1(b)(6)(1), to account for the injuries caused

Agents Garcia and Cantu; by three, because, “during the course of

the offense or immediate flight therefrom”, Benitez assaulted a law

enforcement   officer,   thereby   creating   a   “substantial   risk   of

serious bodily injury”, see U.S.S.G. § 3A1.2(b); by two, because

Agent Cantu was physically restrained, see U.S.S.G. § 3A1.3; by

two, for the endangerment of the Agents who pursued Benitez and

Agent Cantu, see U.S.S.G. § 3C1.2; and by two, pursuant to § 3C1.1,

to account for Benitez’ obstruction of justice (attempt to flee

prosecution for the illegal alien related charges).

     As a result of the reduction, enhancements, and a multiple-

count adjustment made pursuant to Guidelines § 3D1.4 (incorporating

the illegal reentry offense), the recommended offense level was 35.




                                   5
Benitez objected to the PSR and moved for a downward departure; the

Government, for an upward departure.               Benitez contended, inter

alia:     he did not willfully cause the firearm-discharge; the

restraint enhancement was improper because restraint is an element

of attempted murder and because the evidence did not show he

willfully       caused      it;     pursuant         to     Guidelines      §§

2L1.1(b)(5)(substantial risk to non-Border Patrol Agents — the

Green family) and 3C1.2 (reckless endangerment to another in the

course of fleeing), the enhancements “double counted” for the same

conduct, see U.S.S.G. § 2L1.1 cmt. n.6; and the enhancements under

the just-described §§ 3C1.2 (concerning those other than Agent

Cantu,   such   as   the   Green   family)   and    3A1.2   (assault   on   law

enforcement officer so as to cause substantial risk of injury)

“double counted” for the same conduct, see U.S.S.G. § 3C1.2, cmt.

n.1.

       The district court overruled the objections except for double

counting of §§ 2L1.1(b)(5) and 3C1.2.          Benitez’ resulting offense

level was 33; with a criminal history of IV, this translated into

an imprisonment range of 188 to 235 months.               The district court

departed upward and sentenced Benitez to 312 months in prison.

                                     II.

       Benitez contends:     (1) the failure to instruct the jury, sua

sponte, on a lesser-included offense of attempted manslaughter

constituted reversible plain error; (2) the offense level should


                                      6
not have been enhanced for discharge of a firearm because Benitez

did not willfully cause it; (3) enhancing pursuant to Guidelines §§

3C1.2 and 3A1.2(b) constituted double counting; (4) the offense

level should not have been enhanced for the restraint of Agent

Cantu; (5) the upward departure constituted an abuse of discretion;

and (6) in the light of Apprendi v. New Jersey, 530 U.S. 466

(2000),   8   U.S.C.   §   1326(b)(1)       and   (2)   are    unconstitutional.

Several of these contentions are reviewed only for plain error.

                                     A.

     Concerning    not     instructing      on    attempted     manslaughter,   a

lesser-included offense instruction may be given “if, but only if,

(1) the elements of the offense are a subset of the elements of the

charged offense, and (2) the evidence at trial permits a jury to

rationally find the defendant guilty of the lesser offense and

acquit him of the greater”.       United States v. Lucien, 61 F.3d 366,

372 (5th Cir. 1995).       Generally, we review the first consideration

de novo; the second, for abuse of discretion.                 Id.

     Because Benitez did not request the attempted manslaughter

instruction, we instead review only for plain error.                E.g., United

States v. Estrada-Fernandez, 150 F.3d 491, 495 (5th Cir. 1998).

For there to be plain error, the error must be “clear” or “obvious”

and affect a defendant’s substantial rights.                  Even then, we have

discretion whether to correct the error; generally, we will do so

only if it “seriously affect[s] the fairness, integrity, or public


                                        7
reputation of judicial proceedings”.      United States v. Calverley,

37 F.3d 160, 162 (5th Cir. 1994) (en banc), cert. denied, 513 U.S.

1196 (1995).

     In urging reversible plain error, Benitez maintains a number

of circumstances show he acted in “the heat of passion”.               See

United States v. Browner, 889 F.2d 549, 552 (5th Cir. 1989).           For

instance, he testified:     he fled out of fear that his daughter

would be deported; he was shot in his hand and was afraid he would

be shot by the Agents; and he had blurred vision and ringing ears.

According to Benitez, such circumstances “throw into question”

whether he acted with the requisite malice for attempted murder.

     However, as the Government notes, Benitez testified at trial

that he did not know Agent Cantu was trapped by the rear window.

Obviously, it is not plain error not to instruct the jury on

attempted   manslaughter   where   a   defendant   never   testified   he

attempted to kill in “the heat of passion” and testified, instead,

that he did not know his actions had placed anyone in danger.

     Alternatively, Benitez bases reversible plain error on not

instructing on attempted involuntary manslaughter.         To establish

that such an offense even exists, Benitez cites only United States

v. Anderson, 503 F.2d 420 (6th Cir. 1974).     There was no “clear” or

“obvious” error; the offense is not recognized in this circuit.




                                   8
                                    B.

    Benitez challenges various aspects of his sentence, including

enhancements to his base offense level, the upward departure, and

the constitutionality of 8 U.S.C. § 1326(b)(1) and (2).

                                    1.

     Three    enhancements    are   contested.     A   district   court’s

application of the Guidelines is reviewed de novo; its factual

findings, only for clear error.          United States v. Gillyard, 261

F.3d 506, 509-10 (5th Cir. 2001), cert. denied, 534 U.S. 1094

(2002).

                                    a.

     Concerning the firearm-discharge, and pursuant to Guidelines

§ 2L1.1(b)(4)(A), a six-level enhancement is proper if a weapon is

discharged during the commission of the offense.        If the resulting

offense level is less than 22, however, it should be increased to

that level.    Pursuant to Guidelines § 1B1.3(a)(1)(A), Benitez is

responsible only for those acts or omissions that he “induced ...

or willfully caused”.        He claims the evidence does not show he

willfully caused Agent Cantu to discharge his weapon.

     United States v. Roberts, 203 F.3d 867 (5th Cir.), cert.

denied, 530 U.S. 1238 (2000), held a defendant induced or willfully

caused a third party to discharge a firearm when he caused the

third party to fear for his life and discharge his firearm to

prevent it from being used on him.          Although Agent Cantu had no


                                     9
reason to fear Benitez would use the Agent’s firearm on the Agent,

Agent Cantu testified that, in order to save his life, he felt he

had no other option than to fire at Benitez.                     The district court

did not clearly err in holding Benitez’ actions willfully caused

the Agent to discharge his firearm.              See Roberts, 203 F.3d at 870.

                                          b.

     Benitez maintains the               § 3C1.2 enhancement for reckless

endangerment      during    flight      was     improper     because:            it   was

duplicative    of    the    §     3A1.2(b)      enhancement       (assault       on   law

enforcement officer so as to create substantial risk of bodily

injury); and he did not willfully cause the endangerment to the

Green   family,     the    risk    to   whom     formed    the    district       court’s

rationale for the § 3C1.2 enhancement.

                                          i.

     The   Guidelines       provide:           “Do   not   apply    [the     §    3C1.2]

enhancement where ... another adjustment in Chapter Three[] results

in an equivalent or greater increase in offense level solely on the

basis of the same conduct”.             U.S.S.G. § 3C1.2 cmt. n.1 (emphasis

added).    Benitez contends the conduct underlying the §§ 3C1.2 and

3A1.2(b) enhancements was the same.

     Our “same conduct” inquiry focuses “on the temporal and

spatial distinctiveness or separateness of the acts [to determine]

whether [Benitez’] conduct involves more than one culpable act”.

Gillyard, 261 F.3d at 511.              See also, United States v. Matos-


                                          10
Rodriguez, 188 F.3d 1300, 1309-12 (11th Cir. 1999), cert. denied,

529 U.S. 1044 (2000).      In Gillyard, the defendant endangered

numerous people in the course of a 32-mile automobile chase by

police.    In describing the sets of conduct that endangered police

officers and construction workers, respectively, our court noted:

           Although both occurred during the same ...
           chase, both occurred at different times and in
           different places.     Although the ... chase
           jeopardized all in the vicinity, [defendant’s]
           threats of force upon police occurred on the
           interstate and after his endangerment of the
           construction workers on the median.

Id. at 512 (emphasis added).

     Concerning double-counting vel non, the district court stated:

           The conduct ... may have all been in the same
           event, that is, temporally and geographically.
           But the conduct that endangered the Greens was
           different than the conduct that endangered
           Officer Cantu. And I do not think it’s the
           same conduct, and I’m not going to make that
           finding.

     Benitez endangered the Greens by speeding toward them in

reverse.   He later endangered Agent Cantu by speeding forward for

almost three-quarters of a mile with the Agent trapped by the rear

driver’s-side window, attempting to “brush” the Agent against

trees, and attempting to kick him out of the vehicle.       The acts

concerning the Greens and the Agent were separate and distinct both

in time and place.   The danger to the Agent arose after that to the

Greens had ceased.   Benitez’ conduct affecting the Greens occurred




                                 11
entirely within the checkpoint; that which affected Agent Cantu, on

the highway nearly a mile away.    See Gillyard, 261 F.3d at 512.

     Moreover, this is not a case in which there was only one act

endangering different sets of people.     See United States v. Hayes,

135 F.3d 435, 438 (6th Cir. 1998)(§§ 3C1.2/3A1.2(b) double counting

because single acceleration resulting in injuries to both law

enforcement officer and child was “single, uninterrupted act”). As

noted, at a minimum there were different sets of actions — speeding

in reverse; stopping temporarily upon hitting the Greens’ vehicle;

and attempting later in forward to remove Agent Cantu from the

vehicle.

     Earlier in the sentencing hearing, the district court upheld

Benitez’   double-counting    objection    to   the   imposition    of

enhancements pursuant to both §§ 2L1.1(b)(5) and 3C1.2.      Section

2L1.1(b)(5) forecloses the use of both Guidelines if the conduct

underlying the § 2L1.1(b)(5) enhancement “related to fleeing from

a law enforcement officer”.   U.S.S.G § 2L1.1, cmt. n.6.    Notably,

this language does not condition that double-counting issue on

whether the conduct underlying both enhancements was the “same”; it

only requires that the § 2L1.1(b)(5) conduct concern flight from a

law enforcement officer. Although the district court observed that

the conduct endangering the Greens (§ 2L1.1(b)(5) in the PSR) and

that which endangered the pursuing Border Patrol Agents (§ 3C1.2 in

the PSR) was “one course of conduct”, that did not preclude it from


                                  12
holding   that   the   attempted   murder   of   Agent     Cantu    entailed

significantly different conduct from the earlier endangerment to

the Greens.

     Therefore, the district court did not clearly err by finding

the §§ 3A1.2 (danger to Agent Cantu) and 3C1.2 (danger to Green

family) actions were not the same conduct; nor did it err in its

application of the Guidelines.      See Gillyard, 261 F.3d at 510-11.

                                   ii.

     Benitez summarily contends he did not “‘willfully cause’

reckless endangerment” to the Greens.       Guidelines § 1B1.3 requires

specific intent    for   enhancements    under   §§   2   and   3   “[u]nless

otherwise specified”. Section 3C1.2 only requires that a defendant

“recklessly created a substantial risk of death or serious bodily

injury....” (emphasis added).       Benitez need not have willfully

caused such endangerment.

                                   c.

     Next, Benitez contests the § 3A1.3 enhancement for restraining

Agent Cantu.     He maintains:     the enhancement should not apply

because the restraint was an element of the offense; and there was

no evidence that he willfully caused the restraint.

                                   i.

     The § 3A1.3 “restraint” enhancement is not to be applied

“where the unlawful restraint of a victim is an element of the

offense itself (e.g., this adjustment does not apply to offenses


                                   13
covered by § 2A4.1 (Kidnapping, Abduction, Unlawful Restraint))”.

U.S.S.G. § 3A1.3 cmt. n.2.     For determining whether “restraint” is

an   element   of   the   offense,    we    look   only   to   its   statutory

definition.    E.g., United States v. Gaytan, 74 F.3d 545, 560 (5th

Cir.), cert. denied, 519 U.S. 821 (1996).            “Restraint” is not an

element of attempted murder.         18 U.S.C. §§ 1111, 1113.

                                      ii.

      In maintaining the evidence does not show he willfully caused

Agent Cantu’s restraint, Benitez cites Agent Garcia’s testimony

that “there’s no way” Benitez could have activated/closed the rear

window, thereby trapping Agent Cantu, because, had he moved his

hand to do so, Agent Garcia would have been able to pull him out of

the vehicle while being dragged in reverse. Benitez suggests it is

more likely that Agent Garcia, in holding on to the driver’s-side

door, accidentally activated the rear window, thereby trapping

Agent Cantu’s arm.

      Even though the district court accepted that version of

events, it rejected the objection to the § 3A1.3 enhancement:

           It still doesn’t get [past] the fact that
           [Benitez] drove for several minutes with Agent
           Cantu hanging there while he was trying to go
           into the woods and unrestrain Agent Cantu.

                Now he could have stopped at any moment
           and let Agent Cantu off, which he didn’t do.
           So however he began restraint, [Benitez]
           continued the restraint and did it on purpose.




                                      14
       Guidelines § 1B1.3 states:      “Unless otherwise specified, ...

adjustments in Chapter Three[] shall be determined on the basis of

the following:       (1)(A) all acts and omissions committed ... or

willfully caused by the defendant ... that occurred during the

commission of the offense of conviction....” (Emphasis added.) The

district court correctly applied § 3A1.3, because Benitez did not

stop and release Agent Cantu.         Moreover, the underlying finding

that Benitez knew the Agent was trapped by the window was not

clearly erroneous.

                                      2.

       The    district   court   departed    upward   from    the   applicable

Guidelines range of 188-235 months to 312 months (77 months).

Benitez maintains the departure was based on invalid grounds and

was unreasonable.

       A departure is reviewed for abuse of discretion.             E.g., Koon

v. United States, 518 U.S. 81, 96-98 (1996).             If the Guidelines

fail     to    adequately   account    for     aggravating      circumstances

surrounding an offense, an upward departure is permissible on that

basis.    United States v. Schmeltzer, 20 F.3d 610, 613 (5th Cir.),

cert. denied, 513 U.S. 1041 (1994).           We review de novo whether a

factor is “a permissible basis for departure”.               United States v.

Cade, 279 F.3d 265, 270 (5th Cir. 2002) (quotation omitted); 18

U.S.C. § 3742(e).        Even if one or more of the reasons given to

justify a departure is deemed invalid, it may nevertheless be

                                      15
upheld if the remaining reasons justify it.           United States v. Kay,

83 F.3d 98, 101 (5th Cir.)(citations omitted), cert. denied, 519

U.S. 898 (1996).

                                    a.

     The district court’s stated reasons for departing upward were

the enhancements’ failure to account for the risk of death or

serious bodily     injury   to   more    than   one   person;   the   injuries

sustained by the member of the Green family; and the disruption of

governmental function caused by Benitez’ conduct.               (As discussed

infra, the Government also moved for an upward departure based on

conduct that did not enter into the determination of the applicable

Guideline range, see Guidelines § 5K2.21; but, it conceded at

sentencing that this was subsumed within the above grounds.)

                                    i.

     Guidelines § 2A2.1, applicable to attempted murder, provides:

“If the offense created a substantial risk of death or serious

bodily injury to more than one person, an upward departure may be

warranted”.    U.S.S.G. § 2A2.1 cmt. n.3 (emphasis added).             Such a

ground is obviously a “permissible basis for departure”. Cade, 279

F.3d at 270.

     Benitez contends the enhancements pursuant to §§ 3A1.2 (danger

to Agent Cantu) and 3C1.2 (danger to all those at the checkpoint,

including the Green family) had already accounted for the risks

Benitez imposed on those at the checkpoint. The combined increase,


                                    16
however, does not take into account the significant risks imposed

on:   the entire Green family; other civilians at the checkpoint,

including Benitez’ daughter; Agent Garcia, when Benitez accelerated

in reverse; or other Border Patrol Agents, who attempted to stop

Benitez and save both Agents Garcia and Cantu.        The district court

did not abuse its discretion in departing upward on this basis.

      As noted, with regard to the risk to Agent Garcia, the

Government also suggested § 5K2.21 (upward departure based on

dismissed or uncharged conduct) as a basis for the departure in the

light of Benitez’ acquittal for the assault on Agent Garcia.            As

also noted, the Government conceded at sentencing that the § 5K2.21

ground   was   subsumed   within   the   other   grounds   for   departure.

Benitez contends the district court did not find by a preponderance

of the evidence that Benitez intended to assault Agent Garcia. See

United States v. Watts, 519 U.S. 148, 157 (1997).            This matters

little in the § 2A2.1 analysis, which requires only a substantial

risk to others.     For its § 5K2.21 analysis, the district court

ruled the assault on Agent Garcia was a “foreseeable consequence”

of Benitez’ flight.       As a result, the court was entitled to

determine that the preponderance of the evidence proved the conduct

underlying the assault charge.       Thus, the district court did not

abuse its discretion in departing upward based on that ground.

      In any event, the court considered the § 5K2.21 issue within

the context of the § 2A2.1 significant risk ground.          As a result,


                                    17
“the district court would have imposed the same sentence absent”

the § 5K2.21 factor.       See Cade, 279 at 273.

                                    ii.

     Guidelines § 5K2.2 provides:         “If significant physical injury

resulted, the court may increase the sentence above the authorized

guideline range....        If the injury is less serious ... a less

substantial    departure    would   be    indicated”.   (Emphasis   added.)

Restated, physical injury is a permissible basis for departure.

     As Benitez notes, the injuries to Agent Cantu were accounted

for by the § 2L1.1(b)(6) enhancement. (In fact, the district court

enhanced pursuant to § 2L1.1(b)(6) for the injuries to Agents Cantu

and Garcia.) Benitez contends the abrasions, cuts, and bloody nose

suffered by Agent Garcia and the Green family member do not rise to

the level of § 5K2.2 “significant physical injury”.            See United

States v. Singleton, 917 F.2d 411, 413-14 (9th Cir. 1990)(for

upward departure, injuries must be more than “scratches, scrapes

and bruises”).

     At sentencing, Benitez did not object to this basis for

departure; therefore, we review under the narrow plain error

standard.     E.g., United States v. Alford, 142 F.3d 825, 830 (5th

Cir.), cert. denied, 525 U.S. 1003 (1998).         In any event, as noted,

§ 5K2.2 provides for a “less substantial departure” when inflicted

injuries are relatively minor.           Benitez does not explain how the

portion of the upward departure attributable to this basis was

                                     18
anything other than the requisite “less substantial”. The district

court did not commit plain error by departing upward based on these

injuries.

                                     iii.

      Guidelines § 5K2.7 permits a departure “[i]f the defendant’s

conduct resulted in a significant disruption of a governmental

function....”      Benitez    contends     an   upward   departure   for such

disruption was not appropriate because, “[a]lthough the operators

of the checkpoint were occupied and inconvenienced by the events in

question ... [they] were engaged in their normal responsibilities

—   that   is,   preventing   the   trafficking     of   illegal   aliens   and

otherwise    apprehending     criminals     who   have   entered   the   United

States”. See Singleton, 917 F.2d at 414 (upward departure based on

governmental disruption improper where primary function of police

is to apprehend criminals).

      Because Benitez did not object at sentencing to this basis, we

again review only for plain error.          Moreover, a district court has

“wide discretion” in departing upward pursuant to § 5K2.7.               United

States v. Bankston, 182 F.3d 296, 316 (5th Cir. 1999), rev’d sub

nom. on other grounds, 531 U.S. 12 (2000).               Obviously, Benitez’

conduct required acts by Border Patrol Agents that went far beyond

their normal checkpoint activities. For example, normal operations

had to be suspended while medical personnel responded to those

injured.    The district court did not commit plain error.


                                      19
                                   b.

     As noted, based on Benitez’ offense level of 33 and criminal

history of IV, the sentencing range was 188 to 235 months.              The

district court stated it was departing upward one offense level,

arriving at a guideline range of 210 to 262 months, within which it

sentenced Benitez to the statutory maximum for the attempted murder

offense, 240 months.     Additionally, the court sentenced him to 60

months for the illegal transportation offense, which it imposed

consecutive to the sentence for attempted murder; it also sentenced

him to 120 months for the illegal reentry offense, 12 months of

which were to run consecutive to the other sentences.           As a result,

Benitez’ sentence was 312 months.        That sentence would have been

within the Guideline range for an offense level of 37.                  See

U.S.S.G. § 5A (Sentencing Table).        Therefore, the district court

essentially departed by four offense levels, or 77 months.

     Benitez contends:    assuming the departure to an offense level

of 34 was not an abuse of discretion, the decision to depart beyond

the range for that level (210 to 262 months) was.         Along this line,

he maintains this additional 50-month departure was unexplained and

arbitrary.

     Although   the   district   court   explained   it   was    increasing

Benitez’ offense level by one to account for the grounds for upward

departure, the consecutive sentences further reflect the court’s

opinion that this case fell “outside the heartland of cases in


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th[at] category”.    The court’s failure to state it was departing

from   offense   level   34   to   37,    before   imposing   the   312-month

sentence, was not an abuse of discretion. Along this line, Benitez

does not explain how a departure of 77 months would constitute such

an abuse.    See United States v. Davenport, 286 F.3d 217, 221 (5th

Cir. 2002) (13-year departure not abuse of discretion).

                                     3.

       For the first time on appeal, Benitez contends 8 U.S.C. §

1326(b)(1) and (2) are unconstitutional in the light of Apprendi.

He concedes this point is foreclosed by Almendarez-Torres v. United

States, 523 U.S. 224, 235 (1998), but presents it to preserve the

issue for possible Supreme Court review.

                                    III.

       For the foregoing reasons, the judgment is

                                                               AFFIRMED.




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