United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS            May 16, 2003

                       FOR THE FIFTH CIRCUIT              Charles R. Fulbruge III
                                                                  Clerk

                           No. 02-41097
                         Summary Calendar


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

  ISAIS BENAVIDEZ-DIAZ, also known as Manuel Ramirez-Martinez,

                                                 Defendant-Appellant.



                         Consolidated with
                            No. 02-41099


                     UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

   ISAIS BENAVIDEZ-DIAZ, also known as Braulio Benavidez-Diaz,
              also known as Manuel Ramirez-Martinez,

                                                 Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
              USDC No. M:00-CR-606-1 & B:01-CR-625-1
                       --------------------

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this opinion should not be published and is not precedent except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.
          Isais Benavidez-Diaz challenges the sentence imposed following

his conviction for illegal presence in the United States.             For the

first time on appeal, Benavidez contends that the district court

improperly departed in imposing his sentence.

          Because neither the plain text of the guidelines nor Fifth

Circuit law clearly indicates that the district court cannot base

departures under U.S.S.G. §§ 4A1.3 and 5K2.0 on the same prior

misconduct, Benavidez cannot show plain error.              United States v.

Olano, 

, 734 (1993).             Further, Benavidez’s reliance on

United States v. Lara, 

, 1126 n.7 (5th Cir. 1992) is

without merit as the court departed upward on the basis of

§ 5K2.0 regarding the offense of conviction, not merely in order to

adjust Benavidez’s criminal history score upward to account for

behavior not resulting in a conviction.

          Benavidez also contends that 21 U.S.C. § 841 is facially

unconstitutional in light of Apprendi v. New Jersey, 

(2000). As Benavidez concedes, his argument is foreclosed by Fifth

Circuit precedent.            See United States v. Slaughter, 

,

582 (5th Cir. 2000).           He raises the issue only to preserve it for

Supreme Court review.

          Accordingly, the district court’s rulings in both 02-41097 and

02-41099 are AFFIRMED.




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