United States v. Garcia

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40879 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS GARCIA, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. M-01-CR-152-1 -------------------- June 21, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

Jesus Garcia, Jr., appeals from his conviction and sentence

following his guilty plea to possession with intent to distribute

marijuana. He argues that (1) the district court reversibly

erred in failing to rule on his motion for downward departure, as

required by FED. R. CRIM. P. 32(c)(1); (2) the district court

committed plain error when it found that his prior narcotics

convictions were “controlled substances offenses” which triggered

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-40879 -2-

the career offender sentencing enhancement; and (3) 21 U.S.C.

§ 841 (a)&(b) is facially unconstitutional.

At sentencing, the district court addressed Garcia’s

argument regarding the confidential informant, which was raised

in connection only with his motion for downward departure based

on exceptional circumstances, and granted a downward departure on

other grounds. We find that implicit in the judgment and in the

district court’s reasons for judgment was its determination that

Garcia’s recruitment by a confidential informant was not an

exceptional circumstance which warranted an additional downward

departure. See, e.g., United States v. McCormick, 54 F.3d 214,

220-21 (5th Cir. 1995). Therefore, if the motion for downward

departure constituted a “matter controverted” within the meaning

of FED. R. CRIM. P. 32(c)(1), it was resolved by the district

court.

We further hold that it was not plainly erroneous for the

district court to find that Garcia’s state narcotics convictions

were “controlled substance offenses.” First, the convictions

were facially consistent with the definition of a “controlled

substance offense.” See U.S.S.G. § 4B1.2(b); cf. United States

v. Herrera-Solorzano, 114 F.3d. 48, 50 (5th Cir. 1997). Second,

Garcia did not object on that basis or provide any evidence in

rebuttal; therefore, the Government was not required to present

proof beyond the presentence report that these convictions

satisfied U.S.S.G. § 4B1.2(b), and the district court was No. 01-40879 -3-

entitled to rely on the presentence report. See United States v.

Huerta, 182 F.3d 361, 364 (5th Cir. 1999).

Finally, Garcia correctly concedes that the issue whether 21

U.S.C. § 841(a)&(b) is facially unconstitutional is foreclosed by

United States v. Slaugther, 238 F.3d 580, 582 (2000), cert.

denied, 532 U.S. 1045 (2001). He raises the issue only to

preserve it 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).

AFFIRMED.