United States v. Garcia ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40879
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JESUS GARCIA, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-01-CR-152-1
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June 21, 2002
Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Garcia, Jr., appeals from his conviction and sentence
following his guilty plea to possession with intent to distribute
marijuana. He argues that (1) the district court reversibly
erred in failing to rule on his motion for downward departure, as
required by FED. R. CRIM. P. 32(c)(1); (2) the district court
committed plain error when it found that his prior narcotics
convictions were “controlled substances offenses” which triggered
*
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that this opinion should not be published and is not precedent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.
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the career offender sentencing enhancement; and (3) 21 U.S.C.
§ 841 (a)&(b) is facially unconstitutional.
At sentencing, the district court addressed Garcia’s
argument regarding the confidential informant, which was raised
in connection only with his motion for downward departure based
on exceptional circumstances, and granted a downward departure on
other grounds. We find that implicit in the judgment and in the
district court’s reasons for judgment was its determination that
Garcia’s recruitment by a confidential informant was not an
exceptional circumstance which warranted an additional downward
departure. See, e.g., United States v. McCormick, 54 F.3d 214,
220-21 (5th Cir. 1995). Therefore, if the motion for downward
departure constituted a “matter controverted” within the meaning
of FED. R. CRIM. P. 32(c)(1), it was resolved by the district
court.
We further hold that it was not plainly erroneous for the
district court to find that Garcia’s state narcotics convictions
were “controlled substance offenses.” First, the convictions
were facially consistent with the definition of a “controlled
substance offense.” See U.S.S.G. § 4B1.2(b); cf. United States
v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). Second,
Garcia did not object on that basis or provide any evidence in
rebuttal; therefore, the Government was not required to present
proof beyond the presentence report that these convictions
satisfied U.S.S.G. § 4B1.2(b), and the district court was
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entitled to rely on the presentence report. See United States v.
Huerta, 182 F.3d 361, 364 (5th Cir. 1999).
Finally, Garcia correctly concedes that the issue whether 21
U.S.C. § 841(a)&(b) is facially unconstitutional is foreclosed by
United States v. Slaugther, 238 F.3d 580, 582 (2000), cert.
denied, 532 U.S. 1045 (2001). He raises the issue only to
preserve it for further review. This court is bound by its
precedent absent an intervening Supreme Court decision or a
subsequent en banc decision. See United States v. Short, 181
F.3d 620, 624 (5th Cir. 1999).
AFFIRMED.