United States v. Montano-Barrera

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
No. 06-51327
F I L E D
Summary Calendar August 31, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
FRANCISCO MONTANO-BARRERA, also known as Saul Montano-Barrera
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:06-CR-2068-ALL
Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
Francisco Montano-Barrera (Montano)appeals his guilty plea conviction
and 50-month sentence for unlawful reentry following removal from the United
States. Montano asserts that the district court erred by relying on the
presentence report (PSR) to make a determination that his prior Oregon
conviction for delivery of a schedule II controlled substance is a felony drug
trafficking offense meriting a 12-level sentence enhancement pursuant to
U.S.S.G. §2L1.2 (b)(1)(B).
*
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should not be published and is not precedent except under the limited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. 06-51327
Review of the district court’s conclusion that a prior conviction has been
sufficiently proven for sentence enhancement purposes is de novo. United States
v. Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir. 1993). The judgment of
Montano’s prior conviction establishes that Montano pleaded guilty to an
indictment charging him with delivery of a schedule II controlled substance, a
Class B felony. See United States v. Martinez, 962 F. 2d 1161, 1167-69 (5th Cir.
1992). Montano’s prior conviction constitutes a felony and a drug trafficking
offense under §2L1.2; thus, the district court committed no error in enhancing
Montano’s sentence. Shepard v. United States, 544 U.S. 13, 16 (2005); United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005).
Montano asserts that the district court did not comply with FED. R. CRIM.
P. 32 (i)(1)(A) because it did not directly inquire of him whether he had read the
PSR. He urges this court to follow precedent from other circuits that mandates
reversals and resentencing for such Rule 32 noncompliance. As Montano
concedes, his challenge is foreclosed by United States v. Esparza-Gonzalez, 268
F.3d 272, 273-74 (5th Cir. 2001).
AFFIRMED.
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