                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                                                                 April 28, 2003
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               Charles R. Fulbruge III
                                                                    Clerk


                             No. 02-50898
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JAIME REYES-ANCHONDO,

                                     Defendant-Appellant.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                      USDC No. EP-02-CR-219-ALL-DB
                          --------------------


Before JONES, STEWART and DENNIS, Circuit Judges.

PER CURIAM:1

     Jamie     Reyes-Anchondo   (Reyes)   appeals   his     guilty-plea

conviction and sentence for illegal reentry following deportation

in violation of 8 U.S.C. § 1326(a) and (b).     He contends that the

district court erred by going beyond the statute of conviction and

the indictment of his previous alien-smuggling offense to determine

that a 16-level increase in his offense level was warranted under

U.S.S.G. § 2L1.2(b)(1)(A)(vii) for alien-smuggling “for profit.”

     1
      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this opinion should not be published and is not precedent except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. 02-50898
                                      -2-

He also contends that his present indictment was defective for

failing to allege that the prior offense was for profit.

     When   determining    whether    an   offense-level    increase     under

U.S.S.G. § 2L1.2 is warranted, the district court is not limited to

the conduct charged in the indictment of the prior offense, but may

go beyond the statute of conviction and charging instrument to

determine whether the increase is warranted.              United States v.

Sanchez-Garcia, __ F.3d __ , No. 02-40827 (5th Cir. Jan. 24, 2003),

2003 WL 164156, *1.      The court did not err by looking beyond the

statute and indictment of Reyes’s prior conviction to consider a

penalty-notice enhancement and Presentence Report (PSR) from the

prior case, both of which indicated that the prior offense was

committed for profit.       The district court did not misapply the

guidelines.

     Reyes failed to offer any rebuttal evidence to show that “the

PSR’s information is materially untrue, inaccurate or unreliable.”

See United States v. Taylor, 277 F.3d 721, 724 (5th Cir. 2001).

Absent   any   such   rebuttal    evidence,     the   district   court   could

properly rely on the PSR to establish the sentencing range.               See

id.; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995);

United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).                  The

district court did not err by finding that the prior offense was

committed for profit.

     Reyes’s claim that the for-profit factor was required to be

alleged in the indictment is foreclosed by Apprendi v. New Jersey,
                          No. 02-50898
                               -3-

530 U.S. 466 (2000) and Almendarez-Torres v. United States, 523

U.S. 224 (1998). Because the prior conviction itself need not have

been alleged in the indictment, neither did the for-profit factor,

which merely affected the sentence within the statutory range

already warranted by the prior conviction. See 8 U.S.C. § 1326(b);

U.S.S.G. § 2L1.2(b)(1); United States v. Keith, 230 F.3d 784,

786-87 (5th Cir. 2000) (Apprendi affords no relief when sentence

enhanced within statutory range).

     The district court’s judgment is AFFIRMED.
