United States v. Encinas

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 10, 2001
• Docket: 00-40858
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-40858 Summary Calendar _____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS C. ENCINAS,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. C-98-CR-41-1 _________________________________________________________________ April 10, 2001

Before JOLLY, WIENER, and PARKER, Circuit Judges.

PER CURIAM:*

Luis C. Encinas appeals the sentence imposed following his

guilty plea conviction of possessing marijuana with the intent to

distribute. We have reviewed the record, the briefs of the

parties, and the applicable law, and find no reversible error.

Encinas argues that the district court violated Federal Rule

of Criminal Procedure 32(c)(1) by failing to make a finding in

response to his objection regarding the quantity of marijuana

involved in his offense. The district court found that Encinas did

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. not object timely to the drug quantity calculation in the

presentence report (“PSR”). Accordingly, the drug quantity

calculation was not in controversy as that term is used in Rule

32(c)(1) and the court was not required to make a finding. United

States v. Myers, 198 F.3d 160, 167 (5th Cir. 1999), cert. denied,

120 S.Ct. 2230 (2000).

Encinas argues for the first time in his reply brief that the

district court erred in overruling his objection to the PSR as

untimely. We need not address Encinas’s argument because issues

raised for the first time in the reply brief are waived. See

Conkling v. Turner, 18 F.3d 1285, 1305 (5th Cir. 1994); Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

Encinas contends that the district court erred in determining

the quantity of marijuana attributable to him for sentencing

purposes. Encinas’s fact-based argument could have been resolved

by the district court if he had properly raised the issue. Encinas

has not shown plain error. See Robertson v. Plano City of Texas,

70 F.3d 21, 23 (5th Cir. 1995). Moreover, Encinas has not shown

that the district court committed error, plain or otherwise, in

determining the drug quantity for sentencing purposes. The

district court was entitled to adopt the PSR’s drug quantity

calculation without further inquiry because Encinas did not present

any evidence to refute the PSR’s finding that he possessed

2 approximately 43 kilograms of marijuana. United States v. Puig-

Infante, 19 F.3d 929, 943 (5th Cir. 1994).

of Criminal Procedure 32(c)(1) by failing to make a finding as to

whether he committed the instant offense while serving a criminal

justice sentence. To the extent a finding was required, the

district court met its obligation by adopting the PSR. See United

States v. Duncan, 191 F.3d 569, 575 (5th Cir. 1999), cert. denied,

120 S.Ct. 1991 (2000).

Encinas argues that the district court erred by assigning him

two criminal history points because he committed the instant

offense while serving a criminal justice sentence. Even if the

district court erred in calculating Encinas’s sentence, any error

was harmless. The sentencing judge made it clear that she would

impose a 46-month sentence even if the two additional points were

not included in the calculation. See United States v. Tello, 9

F.3d 1119, 1131-32 (5th Cir. 1993)(quoting Williams v. United

States, 503 U.S. 193, 203 (1992)); Fed. R. Crim. P. 52(a) (defining

harmless error as “[a]ny error, defect, irregularity or variance

which does not affect substantial rights”).

A F F I R M E D.