United States v. Reyna ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-21140
c/w No. 01-21142
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER REYNA, SR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-273-1
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November 7, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Francisco Javier Reyna, Sr., is appealing the sentences
imposed following his guilty plea convictions for conspiracy to
possess with intent to distribute five or more kilograms of
cocaine and for possession with intent to distribute five or more
kilograms of cocaine. Reyna argues that the district court
plainly erred in failing to verify that he and his counsel read
and reviewed the presentence report (PSR) prior to sentencing.
*
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that this opinion should not be published and is not precedent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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01-21142
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The district court failed to comply with FED. R. CRIM. P.
32(c)(3)(A) that requires the district court to verify that the
defendant have read and discussed the PSR. However, Reyna has
failed to show that his substantial rights were affected by the
district court’s error. He has failed to assert or demonstrate
that the PSR contained factual inaccuracies that he could have
challenged if he had reviewed the report earlier. Further, he
did not assert in the district court and has not argued on appeal
that he did not review the PSR with his counsel. Because he has
failed to demonstrate any prejudice arising from the error, he
has failed to demonstrate plain error with respect to this issue.
See United States v. Esparza-Gonzalez, 268 F.3d 272, 273-74 (5th
Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002).
Reyna argues that the district court also plainly erred in
failing to provide reasons for the particular sentences imposed
in violation of 18 U.S.C. § 3553(c)(1). Although the district
court failed to articulate reasons for the sentence imposed, it
listened to the positions of both parties relative to Reyna’s
role in the offense and the appropriate sentence to be imposed,
considered and adopted the findings in the PSR, and commented on
Reyna’s leadership role in the offense. Insofar as the
Government’s counsel expressed an opinion as to the extent of
Reyna’s drug-trafficking activities, the assertion was supported
by Reyna’s own admissions and the other findings in the PSR. It
can be inferred from the record that the district court chose the
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particular sentences imposed in light of Reyna’s extensive
history and involvement in drug-trafficking activities. Reyna
has not demonstrated that the district court’s failure to
articulate specific reasons for the sentences affected his
substantial rights or seriously affected the integrity of the
judicial proceeding. Thus, he has failed to show plain error.
See United States v. Izaguirre-Losoya, 219 F.3d 437, 441 (5th
Cir. 2000); United States v. Gore, 298 F.3d 322, 324 (5th Cir.
2002).
Reyna argues that 21 U.S.C. §§ 841(a), (b) are
unconstitutional because the drug type and quantity involved in
an offense should be treated as elements of the offense in light
of Apprendi v. New Jersey, 530 U.S. 455 (2000). He acknowledges
that this argument is precluded by this court’s decision in
United States v. Slaughter, 238 F.3d 580 (5th Cir. 2000), cert.
denied, 532 U.S. 1045 (2001), but wishes to preserve the issue
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).
Reyna’s challenge to the constitutionality of § 841 is foreclosed
by this court’s precedent. The sentences imposed are AFFIRMED.