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.

********** Consolidated with No. 01-51196 **********

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ABEL RODRIGUEZ, also known as Artemio Cortez, also known as David Puga,

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-01-CR-539-ALL-DB -------------------- 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(5th

Cir. 1992). We construe the argument that Rodriguez’s perjurious

statement was not “material,” as required by

, 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,

(5th Cir. 1997); United States v.

Montano-Silva,

(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,

. 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,

(5th Cir. 1995) (severance);

Beattie v. Madison County Sch. Dist.,

(5th Cir.

2001) (discovery).

Regarding the alleged sentencing errors, Rodriguez’s

Apprendi v. New Jersey,

(2000), argument is, as he

concedes, foreclosed by Almendarez-Torres v. United States,

(1998). See United States v. Dabeit,

(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,

.

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,

(5th Cir. 2002);

United States v. Alford,

(5th Cir. 1998).

AFFIRMED.