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

                                                                   FILED
                                                                December 18, 2007
                                No. 07-40148
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JESUS CARRILLO-RODRIGUEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 7:06-CR-857-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Jesus Carrillo-Rodriguez appeals his conviction of being found in the
United States after a previous deportation, pursuant to 8 U.S.C. § 1326.
Carrillo-Rodriguez contends that the 16-level adjustment to his offense level for
a previous conviction of a crime of violence was erroneous because the Florida
statute under which he was convicted of burglary in 2004 extends to conduct
beyond the generic definition of burglary of a dwelling because the operative



      *
      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should not be published and is not precedent except under the limited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. 07-40148

definition of “dwelling” in Florida includes the curtilage of a building. He argues
that the district court’s error was not harmless for numerous reasons.
      Carrillo-Rodriguez did not raise in the district court his argument about
the Florida statute’s inclusion of curtilage in its definition of a dwelling. Our
review is for plain error. See United States v. Cabral-Castillo, 35 F.3d 182, 188-
89 (5th Cir. 1994).
      The district court erred by adjusting Carrillo-Rodriguez’s offense level
based on his Florida conviction. See United States v. Gomez-Guerra, 485 F.3d
301-303-04 (5th Cir. 2007). However, the 16-level adjustment did not constitute
reversible plain error, whether the district court’s alternative reasoning for
imposing a 70-month sentence constituted an upward departure or a non-
guideline sentence.
      The district court incorrectly considered Carrillo-Rodriguez’s arrest record.
See U.S.S.G. § 4A1.3(a)(3), p.s. However, Carrillo-Rodriguez had a total of 11
convictions that were not counted when calculating his criminal history score.
The district court did not err by concluding that Carrillo-Rodriguez’s convictions
of unlawfully carrying a weapon and battery suggested a history of violence, and
that his convictions of petty theft, burglary of a structure, grand theft, and
criminal trespass suggested a lack of respect for other peoples’ property. See
§ 4A1.3(a)(3), p.s., comment. (backg’d).
      The number and nature of Carrillo-Rodriguez’s uncounted convictions
suggested that a substantial departure or a relatively high non-guideline
sentence was advisable to promote respect for the law, provide just punishment,
afford deterrence against future criminal conduct, and protect the public from
Carrillo-Rodriguez. See 18 U.S.C. § 3553(a)(2). Because a departure was
permissible pursuant to § 4A1.3(a)(3), p.s., the sentence was consistent with
§ 3553(b)(1), which allows departures when an aggravating circumstance has not
been adequately taken into account, in kind or in degree, by the Sentencing
Commission. Moreover, given Carrillo-Rodriguez’s evident disregard for the law,

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a departure was justified on the facts of the case. See United States v. Zuniga-
Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S. Ct. 2954 (2006).
      Analyzed as a non-guideline sentence, the district court provided fact-
specific, compelling reasons that are consistent with the sentencing factors of
§ 3553(a). The district court did not fail to account for any factor that should
have received significant weight or, despite the consideration of Carrillo-
Rodriguez’s arrest record, give significant weight to an improper factor. Nor did
the district court commit a clear error in judgment while balancing the
sentencing factors. See United States v. Smith, 440 F.3d 704, 707-08 (5th Cir.
2006). The 70-month sentence was reasonable in light of Carrillo-Rodriguez’s
extensive history of serious criminal conduct. See id. at 705, 710.
      Carrillo-Rodriguez 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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