United States v. Najera-Ojeda

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 95-10803
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL NAJERA-OJEDA,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(6:95-CR-0002-C)
July 2, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Manuel Najera-Ojeda pleaded guilty to illegal reentry into the
United States after previous deportation, in violation of 8 U.S.C.
§ 1326. He filed a timely notice of appeal, and we affirm.
Najera-Ojeda argues that the district court entered an illegal
sentence by failing to follow FED. R. CRIM. P. 32(c)(3)(A). We have
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
reviewed the record and hold that the district court substantially
followed Rule 32(c)(3)(A). See United States v. Victoria, 877 F.2d
338, 340 (5th Cir. 1989) (stating that “a court may draw reasonable
inferences from court documents, the defendant’s statements, and
counsel’s statements when determining whether a defendant has ‘had
the opportunity to read and discuss’ the PSIR with his counsel”)
(quoting United States v. Miller, 849 F.2d 896, 898 (4th Cir.
1988)). Even assuming that the district court erred in failing to
specifically ask Najera-Ojeda and his counsel whether they had read
and discussed the PSR, Najera-Ojeda must demonstrate that the error
was not harmless. See FED. R. CRIM. P. 52(a) (“Any error, defect,
irregularity or variance which does not affect substantial rights
shall be disregarded.”); United States v. Boutte, 13 F.3d 855, 858
(5th Cir.) (stating that a defendant must show with some
particularity how the district court’s violation of the Rules of
Criminal Procedure hindered his defense), cert. denied, ___ U.S.
___, 115 S. Ct. 71, 130 L. Ed. 2d 27 (1994). Najera-Ojeda does not
claim prejudice as a result of the court’s violation of Rule
32(c)(3)(A), nor does he even allege that he did not read and
discuss the PSR with his attorney. We therefore hold that any
error was harmless.
Acknowledging that Fifth Circuit precedent is contrary to his
position, Najera-Ojeda argues that his sentence was imposed in
violation of the law because the indictment did not contain an
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allegation that he committed a prior felony. See United States v.
Vasquez-Olvera, 999 F.2d 943, 945-46 (5th Cir. 1993) (holding that
the indictment need not contain an allegation that the defendant
committed a prior felony if he is to be convicted under 8 U.S.C.
§ 1326(b)(2)), cert. denied, ___ U.S. ___, 114 S. Ct. 889, 127 L.
Ed. 2d 82 (1994). Because we cannot overrule a decision of another
Fifth Circuit panel, we hold that Najera-Ojeda has failed to
demonstrate any reversible error.2 See United States v. Taylor,
933 F.2d 307, 313 (5th Cir.), cert. denied, 502 U.S. 883, 112 S.
Ct. 235, 116 L. Ed. 2d (1991).
For the foregoing reasons, we AFFIRM Najera-Ojeda’s
conviction.
2
We also note that Najera-Ojeda has failed to demonstrate that this
error is jurisdictional. See United States v. Owens, 996 F.2d 59, 60 (5th Cir.
1993) (“By pleading guilty to an offense, a criminal defendant waives all non-
jurisdictional defects preceding the plea.”).
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