United States v. Gonzalez-Rojas ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20535
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS GONZALEZ-ROJAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-910-ALL
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December 12, 2002
Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Jose Luis Gonzalez-Rojas (“Gonzalez”) appeals the 41-month
sentence imposed following his guilty plea to a charge that he
violated 8 U.S.C. § 1326 by illegally reentering the United
States after having been deported following an aggravated felony
conviction. Gonzalez first argues that the district court’s
failure to determine that he and his counsel had read and
discussed the presentence report (PSR) was a violation of
FED. R. CRIM. P. 32(c)(3)(A) which constitutes plain error.
*
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that this opinion should not be published and is not precedent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. 02-20535
-2-
As Gonzalez acknowledges, in United States v. Esparza-Gonzalez,
268 F.3d 272, 273-74 (5th Cir. 2001), cert. denied, 122 S. Ct.
1547 (2002), this court rejected the suggestion that it should
treat a Rule 32(c)(3)(A) error “as a structural defect,
requiring automatic reversal,” and held that where an issue of
noncompliance with Rule 32 was not raised in the district court,
this court could “correct the error only if the error was plain
and affected the applicants’ substantial rights.” Esparza-
Gonzalez, 268 F.3d at 273-74.
Gonzalez argues that the district court’s selection of the
maximum term of imprisonment under the Sentencing Guidelines was
influenced by his criminal history, which the district court
catalogued at the sentencing hearing. He submits that the
failure of the district court to ascertain that he had read and
reviewed with counsel the PSR discussing his criminal history
affected his substantial rights.
Gonzalez does not contend that he did not read and discuss
his PSR with defense counsel and does not assert that the
criminal history in the PSR contained factual inaccuracies that
he could have challenged and, if corrected, would have resulted
in his receiving a lesser sentence. “We must uphold a sentence
reviewed for plain error if the court could lawfully and
reasonably reinstate it on remand.” United States v. Ravitch,
128 F.3d 865, 869 (5th Cir. 1997). Gonzalez has failed to make
the showing required under the plain error standard. See
No. 02-20535
-3-
Esparza-Gonzalez, 268 F.3d at 273-74; Ravitch, 128 F.3d at 869.
This is a frivolous issue.
Gonzalez also argues that the sentencing provisions of
8 U.S.C. § 1326(b)(1) and (b)(2) are unconstitutional in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000). He concedes that
this argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for Supreme Court review. Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United
States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000), cert.
denied, 531 U.S. 1202 (2001). This court must follow the
precedent set in Almendarez-Torres “unless and until the Supreme
Court itself determines to overrule it.” Dabeit, 231 F.3d at 984(internal quotation and citation omitted).
AFFIRMED.