United States v. Rodriguez ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51124
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL RODRIGUEZ, also known as Artemio Campos-Cortez,
also known as David Puga, Jr.,
Defendant-Appellant.
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Consolidated with
No. 01-51196
**********
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL RODRIGUEZ, also known as Artemio Cortez,
also known as David Puga,
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-01-CR-539-ALL-DB
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September 11, 2002
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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. 01-51124 c/w
01-51196
-2-
Abel Rodriguez appeals his conviction and sentence for
illegal reentry and perjury. He raises the following arguments:
(1) his illegal reentry prosecution was barred by the statute of
limitations; (2) his statements made during his initial
appearance were inadmissible against him in his perjury
prosecution; (3) the district court abused its discretion in
denying his motion to sever; (4) his sentence violates Apprendi
v. New Jersey, 530 U.S. 466 (2000); (5) the district court erred
in enhancing his sentence for obstruction of justice; and (6) the
district court failed to provide adequate notice of the grounds
for upward departure, and his perjury was an impermissible ground
for upward departure.
Rodriguez’s argument that the statute of limitations barred
his illegal reentry prosecution is waived due to inadequate
briefing. See United States v. Green, 964 F.2d 365, 371 (5th
Cir. 1992). We construe the argument that Rodriguez’s perjurious
statement was not “material,” as required by 18 U.S.C. § 1623, as
challenging the sufficiency of the evidence and hold that his
challenge fails because he has not shown that his identity was
immaterial to the proceeding at issue. See United States v.
Westbrook, 119 F.3d 1176, 1189 (5th Cir. 1997); United States v.
Montano-Silva, 15 F.3d 52, 53 (5th Cir. 1994). To the extent
that Rodriguez argues that his perjurious statement should have
been suppressed because it was made in violation of his rights to
counsel and to remain silent and that the burden of proof was
No. 01-51124 c/w
01-51196
-3-
impermissibly shifted to him, those issues are also inadequately
briefed and are waived. See Green, 964 F.2d at 371. We further
hold Rodriguez has not established that the district court abused
its discretion in denying his motion to sever or in denying his
discovery request relating to the limitations issue. See United
States v. Bullock, 71 F.3d 171, 174 (5th Cir. 1995) (severance);
Beattie v. Madison County Sch. Dist., 254 F.3d 595, 605 (5th Cir.
2001) (discovery).
Regarding the alleged sentencing errors, Rodriguez’s
Apprendi v. New Jersey, 530 U.S. 466 (2000), argument is, as he
concedes, foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998). See United States v. Dabeit, 231 F.3d 979, 984
(5th Cir. 2000). The argument that the district court erred in
applying the obstruction-of-justice enhancement is inadequately
briefed and thus waived. See Green, 964 F.2d at 371.
Although the district court erred insofar as it failed to
provide notice prior to sentencing of the grounds on which it
intended to upwardly depart from the guidelines, applying plain-
error review, we find that on remand the district court could
reinstate the same sentence by relying on a reasonable
application of the Guidelines; therefore, Rodriguez has failed in
his burden of proving prejudice from that error, and he has
failed to establish that the sentence must be vacated. See
United States v. Davenport, 286 F.3d 217, 219 (5th Cir. 2002);
United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998).
AFFIRMED.