                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                               April 27, 2004

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                             No. 03-41190
                           Summary Calendar


                       UNITED STATES OF AMERICA,
                                                        Plaintiff-Appellee,

                                   versus

                 JOSE AMILPAS-WENCES, also known as
               Oliver Amilpas-Benitez, also known as
                       Elidoro Amilpas-Benitez,
                                                Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Texas
                          (M-03-CR-454-1)


Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Amilpas Wences appeals his conviction and sentence for

attempted illegal entry.         Consistent with a suggestion in the

presentence    investigation     report,     the   district    court   departed

upward for the sentence; Amilpas’ criminal history score was raised

by one point, from 3 (category II) to 4 (category III).                The court

did so,   in   part,   because    of   two   misdemeanor      convictions     not

included in Amilpas’ criminal history score because he was under 18

and they occurred more than five years prior to the attempted



     *
        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this opinion should not be published and is not precedent except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.
reentry.   See U.S.S.G. § 4A1.2(d)(2)(B).           With a criminal history

category II, the guideline range would have been 15-21 months; with

a category III, it was 18-24 months.        See U.S.S.G. Manual Ch. 5 Pt.

A (Sentencing Table).       Amilpas was sentenced, inter alia, to 24

months’ imprisonment.

     Amilpas    raises     three    bases   for    challenging   the    upward

departure.     At sentencing, however, he simply objected to any

upward departure.    Because he did not object on the basis of any of

the bases he raises now, we review each basis only for plain error.

When we review upward departures for plain error, we affirm the

sentence if, inter alia, “on remand the district court could

reinstate the same sentence by relying on a reasonable application

of the Sentencing Guidelines”.        United States v. Wheeler, 322 F.3d

823, 828 (5th Cir. 2003) (quoting United States v. Ravitch, 128

F.3d 865, 871 (5th Cir. 1997)).              He also raises two issues

unrelated to the upward departure; both are foreclosed.

     Citing United States v. Gentry, 31 F.3d 1039, 1041 (10th Cir.

1994), cert. denied, 516 U.S. 1001 (1995), Amilpas contends a

sentencing court may not consider stale convictions unless it

specifically   makes     findings    that   such   convictions   are    either

similar or serious and dissimilar.           The district court met any

requirements of specificity under Guidelines § 4A1.3 when it said

it   “believe[d]    that    ...     Amilpas’[]     criminal   history    under




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represents the seriousness of his past criminal conduct ... and the

likelihood that he will commit future crimes”.

     Amilpas also contends that the two stale convictions were

neither similar nor serious.                Amilpas is correct that stale prior

convictions for dissimilar, non-serious conduct would, taken alone,

constitute an invalid basis for departure.                     See U.S.S.G. § 4A1.2,

comment. (n.8).     The Sentencing Guidelines do not define “serious”

crimes; “serious”      is    not       a    legal    category       generally       used    to

distinguish between different types of crimes, and our court has

never addressed what constitutes “serious dissimilar” conduct.                             In

the absence of any precedent or other guidance, the district court

did not commit plain (“clear” or “obvious”) error.                            Furthermore,

the district court discussed the stale prior convictions only as

part of a broader, permissible basis for departure — that Amilpas’

presumptive guideline range failed to capture his likelihood of

recidivism.    See United States v. Ashburn, 38 F.3d 803, 807 (5th

Cir. 1994) (en banc), cert. denied, 514 U.S. 1113 (1995).

     Amilpas    also      contends         that,     even     if   the    departure        was

justified,    its   extent       was       unreasonable.           The   district       court

departed upward      by    one    criminal          history    point     and    imposed      a

sentence three months longer than the maximum Amilpas faced without

the departure.      There was no plain error.

     Amilpas contends for the first time on appeal that a prior

state felony     conviction       for       simple     possession        is   not   a    drug


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trafficking crime and not an aggravated felony under 8 U.S.C. §

1101(a)(43)(B) or U.S.S.G. § 2L1.2(b)(1)(C).    He concedes that his

argument is foreclosed by our precedent, citing United States v.

Rivera, 265 F.3d 310, 312-13 (5th Cir. 2001), cert. denied, 534

U.S. 1146 (2002), and United States v. Hinojosa-Lopez, 130 F.3d

691, 693-94 (5th Cir. 1997).

     Amilpas concedes that whether the “felony” and “aggravated

felony”   provisions   of      8   U.S.C.   §   1326(b)(1)&(2)   are

unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466

(2000), is foreclosed by Almendarez-Torres v. United States, 523

U.S. 224 (1998); he raises it solely to preserve possible review by

the Supreme Court.

                                                         AFFIRMED




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