United States v. Macias-Castro ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-50150
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE MACIAS-CASTRO, also
known as Martin Sotel-Hernandez,
also known as Rogelio Martinez-Lopez,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
USDC No. A-97-CR-106-All
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November 25, 1998
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Juan Jose Macias-Castro appeals his conviction and sentence
for being a previously deported alien who reentered the United
States without permission and for falsely representing himself to
be a United States citizen. the primary issue at trial was where
Macias was born. The evidence, viewed in the light most favorable
to the jury’s verdict, was sufficient to allow a rational trier of
fact to conclude, beyond a reasonable doubt, that Macias was born
*
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this opinion should not be published and is not precedent except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.
in Mexico. See United States v. Resio-Trejo, 45 F.3d 907, 910 (5th
Cir. 1995); United States v. Martinez, 975 F.2d 159, 160-61 (5th
Cir. 1992).
The district court did not abuse its discretion in denying
Macias’s motion for a new trial. Macias did not meet his burden of
showing that the whereabouts of his father could not have been
ascertained prior to trial with due diligence. United States v.
Freeman, 77 F.3d 812, 817 (5th Cir. 1996); United States v.
Mulderig, 120 F.3d 534, 545 (5th Cir. 1997).
The district court did not commit plain error in raising
Macias’s base offense level by 16 levels because of his previous
conviction for retaliation. United States v. Calverley, 37 F.3d
160, 162-64 (5th Cir. 1994)(en banc). Macias argues, without
support, that he did not receive a one-year sentence for the crime
and that it thus did not meet the definition of an aggravated
felony as set forth in 8 U.S.C. § 1101(a)(43)(F). Macias’s
presentence report (“PSR”) indicates that Macias served two years
for the offense. The PSR is considered reliable and may be
considered as evidence by the court when making sentencing
determination. United States v. Gonzalez, 76 F.3d 1339, 1346 (5th
Cir. 1996); United States v. Lghodaro, 967 F.2d 1028, 1030 (5th
Cir. 1992).
This court does not consider Macias’s arguments that his
sentence was imposed in violation of the Ex Post Facto Clause and
that the government presented improperly cumulative evidence
2
because these arguments were raised for the first time in Macias’s
reply brief. See United States v. Jackson, 50 F.3d 1335, 1340 n.7
(5th Cir. 1995).
A F F I R M E D.
3